J. I. Simon, Pittsburgh, for appellants.
No appearance or book for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 606]
This is an action of trespass tried before a judge without a jury. From a judgment entered in favor of the plaintiffs in the sum of $225.00, the defendants have appealed.
The complaint alleged in substance that the defendants 'swore to an affidavit regarding certain furniture and proceeded with the assistance of a Deputy Sheriff * * * to take from the home of the Plaintiffs certain furniture for which the Plaintiffs herein have made full payment * * *'; and that 'the said Defendants, by their agents, proceeded in a very reckless manner to remove certain furniture belonging to the Plaintiffs from the Plaintiffs' home and in so doing did great damage to Plaintiffs' property. * * *' The defendants' answer averred that the furniture in question had been purchased from them by plaintiffs under a bailment lease and that $87.33 of the purchase price was unpaid. It was denied that the furniture was removed in a reckless manner and was further averred that defendants' acts 'were in accordance with Replevin Proceedings issued in the Common Pleas Court of Allegheny County at No. ___ and the said removal was in accordance with the procedure of law and * * * were performed in a lawful, reasonable and careful manner, as not to damage any of the property of the Plaintiffs'.
At the trial, the wife plaintiff testified that in October of 1942, when she was married to a man named
[ 171 Pa. Super. Page 607]
Virgil Shelton, she purchased a bedroom suite from the defendants. She stated that payments made on the furniture were 'scattered and far apart' but that payment in full had been made. She testified that the defendant named in the 'papers to replevy' the furniture was Virgil Shelton and that when she would not accept service for her former husband the sheriff simply 'laid them on the corner of an end table and pulled the door shut and left'. Thereafter, she testified, Herman Recht, two deputy sheriffs and two movers arrived to 'lift' the bedroom suite and in so doing damaged the bedroom floor, the stairs, bannister and ceiling over the stairs. Herman Recht testified that there was an unpaid balance of $86.69 on the furniture.
At this point the trial was continued until June 16, 1950, a period of some seven months, and when court reconvened Harry Alan Sherman, Esquire, trial counsel for defendants, made the following statement to the court: 'I want to put on record that I have notified my client to be here at 9:30 this morning. He was in my office in response to that registered mail notice and he informed us he would not appear; that if an adverse decision was rendered against him he would get a lawyer that knows something about law and I am advising the Court officially that he has had actual notice of this continued hearing and that under the circumstances I shall have to file a motion for leave to withdraw as counsel but without prejudice to the plaintiff's right to prove his testimony. He said he would not be here and will not participate in this hearing and in view of the circumstances I cannot possibly represent him. Because of the record and because of the fact that my client is apparently unaware of the legal value of the matters already of record against him and because I feel that he is damaging his own chances for contradicting any further testimony by not
[ 171 Pa. Super. Page 608]
appearing in Court, I believe that it is my duty to stipulate of record that the amount which was previously discussed as a reasonable judgment in the case; that is, the sum of $225, would be a fair disposition of this case and I so stipulate that the entry of the judgment of $225 be entered at this time without further taking of testimony, which might result in additional costs to my ...