Appeal, No. 140 March T., 1951, from judgment of Court of Common Pleas of Allegheny County, April T., 1948, No. 2568, in case of Edward K. Slavin v. Andrew P. Slavin. Judgment reversed.
S. Allen Vatz, with him Andrew L. Weil and Weil, Vatz & Weil, for appellant.
Louis Vaira, with him Albert G. Brown, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is an appeal from the order of the court below refusing a new trial of an interpleader action which concerned the ownership of a sum of money deposited in court by the District Attorney of Allegheny County.
From a stipulation of counsel read into the record it appears; that the District Attorney was originally defendant in an action brought by Andrew P. Slavin (here appellee) to recover from said district attorney a sum of money which appellee claimed to be his property; that Edward K. Slavin (here appellant) likewise claimed said money. Whereupon the court granted an interpleader and brought Edward on the record as interpleaded claimant and ordered the District Attorney to pay into court the sum of $13,028.00.
The record further shows that the court in obedience to Pa. R.C.P. 2304, in its decree ordered the appellant, Edward K. Slavin, to be "added to the record as party plaintiff," and enjoined him from commencing any action against the District Attorney. Later, after payment into court an order was entered discharging the defendant District Attorney of all liability in the premises and for any costs accruing. The appellant, Edward K. Slavin, then filed an interpleaded complaint as party plaintiff, all in strict accordance with Pa. R.C.P. 2309. In that complaint it was averred in substance that the appellee (Andrew, his father) while under the influence of intoxicating liquor had feloniously taken and carried away from the appellant's bedroom the money in question and said money had been recovered by the detectives who apprehended the appellee and delivered said money to the District Attorney. Appellant claimed said money as his sole property.
The jury found a verdict for the defendant, Andrew, and upon refusal of the court to award a new trial,
Edward K. Slavin takes this appeal and charges the following errors: (1) the trial judge erred in making Andrew P. Slavin, (the original plaintiff), a defendant, thereby prejudicing the appellant by making him carry the burden of proof and so charging the jury; (2) that the trial judge erred in refusing appellant's motion to withdraw a juror because of Andrew's testimony to the effect that he had been acquitted in the criminal trial; (3) that the court below abused its discretion in failing to award a new trial because the verdict was against the weight of the evidence.
We are persuaded that the learned trial judge did commit error in designating the impleaded claimant (Edward) as plaintiff and the original plaintiff (Andrew as defendant, under the present Pa. Rules of ...