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MOUNTCASTLE v. SCHUMANN ET AL. (12/16/64)

decided: December 16, 1964.

MOUNTCASTLE
v.
SCHUMANN ET AL., APPELLANTS



Appeal from judgment of County Court of Allegheny County, No. 966 of 1959, in case of Henry R. Mountcastle et ux. v. W. A. Schumann et al.

COUNSEL

Karl D. Enzian, for appellants.

David R. Levin, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 205 Pa. Super. Page 22]

The defendant constable, authorized by the defendant landlords to distrain upon the personal property of the plaintiffs for rent in arrears, went to the apartment house in which they occupied a second floor apartment. Mr. Mountcastle, the husband plaintiff, met the constable on the stairway. The constable handed him the notice of distraint but did not enter the premises, view the goods or take physical possession of them. The tenants filed a writ of replevin with bond against the constable and the landlords to recover the goods. At the trial the plaintiffs obtained a verdict and the defendants have appealed from the refusal of the court below to enter judgment n.o.v.

[ 205 Pa. Super. Page 23]

The principal question before us is whether or not there was a sufficient seizure of the plaintiffs' property to constitute a valid distraint.

The constable testified that he knocked on the side door and "Mr. Mountcastle came down and he told me somebody was sick and he didn't want them disturbed, but he said, I'm going to straighten out the matter with Mr. Schumann, just leave the paper with me." The constable replied, "It is o.k. I won't bother them". He did not post the property but gave it to the husband. On cross-examination of the constable, the following transpired:

"Q. Do you know what the requirements of that act are for making the destraint? [sic]

"A. If you are going to post the person to go in will make the complaint there for you, but if you are going there for rental you are not going into a full procedure on it, you are giving the guy time to straighten it out.

"Q. As I understand it, you did not intend to make a full destraint at the Mountcastle's at that time?

"A. I did . . . My intention was to get them together to get it straightened out. If I wanted to proceed on the full thing I would have made an appraisal after 5 days which we didn't do. They said they would get it straightened out and I said that is all ...


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