Guinn v. Vitte

Opinion by Trexler, J., This is an action of replevin. ' There are three errors alleged. First: The trial judge admitted as prima facie proof of value of the articles replevied, the affidavit which the plaintiff filed under the 2d Section of the Act of March 19,1903, P. L. 39, amending Section 8 of the Act of April 19, 1901, P. L. 88. The act provides, “In order to determine the amount of bail, the plaintiff shall make an affidavit of the value of the goods and chattels which value shall be the cost to the defendant of replacing them should the issue be decided in his favor.” Ex parte affidavits although made in court proceedings are excluded unless there are statutory provisions to the contrary, Chamberlayne, Section 2758, Wigmore, Sections 1384, 1690. The only purpose of the affidavit was to fix the amount of bail. Having served its purpose, as was said in regard to an affidavit of defense in Kittanning Boro. v. Kittanning Con. Nat. Gas Co., 26 Pa. Superior Ct. 355, it cannot now be offered’on the trial as evidence of the facts therein alleged. Ex parte affidavits are at best but a very weak kind of evidence and generally formed by the ground of some preliminary or interlocutory action, but are never unless it be especially so provided by Act of Assembly or rule of court the foundation of judgment or decree: Pittsburgh’s App., 79 Pa. 317. The principal reason in support of the common law rule as to the exclusion of such affidavit is found in the fact that no opportunity for cross-examination would be afforded were such proof allowed. The [615] court below relied upon Gibbs v. Bartlett, 2 W. & S. 29, but we think the case has no application. That case decides that the plaintiff’s affidavit may be used against him. That is an entirely different matter than allowing it to be used in his favor. It is no answer to the objection to the affidavit that the defendant was at liberty to present proof showing a different value. The plaintiff must sustain his action by competent proof. There being no legal evidence showing plaintiff’s damage, the only verdict that could have been rendered in plaintiff’s favor would have been for nominal damages. Second: The plaintiff, when he filed his affidavit under the 2d Section of the Act of 1903, supra, the pertinent part of which is quoted above, failed to insert the words “which shall be the cost to the' defendant of replacing them.” The omission of these words is not fatal. They may very properly have been put in the affidavit but the act does not require this to be done. The words omitted by the plaintiff are mere directions showing upon what basis the value is to be fixed, “it is to be the cost to the defendant of replacing the goods.” Third: The court instructed the jury that the value of the articles replevied was to be fixed as of the time when the writ was issued. This was in accord with the Pennsylvania rule as stated in Duroth Mfg. Co. v. Cauffiel, 243 Pa. 24, and cases there cited. The articles in the suit at bar consisted of the head and hide of a deer. The defendant caused them to be prepared by a taxidermist as trophies of the chase and being mounted they were greatly increased in value. In such case if the claim to the property is found to be in good faith, it seems under the cases of Herdic v. Young, 55 Pa. 176, and Stauffer v. Miller Soap Co., 151 Pa. 330, the latter an action of trespass, the defendant may prove that the value of the’articles replevied were enhanced by his labor and money. The first six assignments are sustained. The judgment is reversed and a venire facias de novo is awarded.