Appeal from order of Superior Court, April T., 1964, No. 206, affirming judgment of Court of Common Pleas of Allegheny County, July T., 1962, No. 1194, in case of Alberta G. Miller v. Irving Feldstein and Mildred Feldstein, his wife.
Angelo C. Procopio, for appellant.
Nathan Holstein, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Roberts dissent.
This is an appeal by Alberta G. Miller, appellant, who was the plaintiff in an action of replevin without bond in the court below from the order of the lower court sustaining defendant's preliminary objection and dismissing the complaint.
The Superior Court affirmed the judgment of the lower court and this Court granted allocatur. The facts follow:
Irving and Mildred Feldstein, appellees, obtained a judgment against Robert K. Miller on which an execution was issued. The sheriff levied upon certain household goods and scheduled a sale. Alberta G. Miller, appellant and wife of Robert K. Miller the defendant in the judgment execution, served written notice on the sheriff that the household goods levied upon belonged to her. The sheriff then obtained a rule for interpleader under the Act of June 22, 1931, P. L. 883, 12 P.S. § 2358. Both appellant (claimant) and the Feldsteins, the judgment creditors, filed an answer to this rule which the court below made absolute. Appellant-claimant did not thereafter file a statement of title or a bond as required by the Act. The Feldsteins following § 11 of the Act secured from the prothonotary a certificate indicating that the claimant failed to comply
with the Act and the sheriff being furnished with that certificate from the prothonotary proceeded with the execution as if no claim had been filed. After advertisement the goods were sold to the Feldsteins. Appellants then instituted this present action of replevin without bond.
Both the lower court and the Superior Court held that if appellant had not filed a property claim thereby setting in motion the interpleader proceedings she might well have pursued her common law remedy. However, since appellant chose to avail herself of the Sheriff's Interpleader Act and did not comply with the Act by filing the bond and claim and statement of title, she may not now avoid the consequence of her abandonment of that proceedings by this second attempt to assert her title.
The history of the Sheriff's Interpleader Act indicates that it was not until the Act of June 22, 1931, P. L. 883, that § 11 of the Act, 12 P.S. § 2368, was amended to provide that if a bond and statement were not filed by the plaintiff the sheriff on being furnished with a certificate to that effect from the prothonotary or clerk could proceed with execution as if no claim had been filed. The original Act of April 10, 1848, P. L. 448, which governed interpleaders in Philadelphia and Luzerne Counties was enacted solely for the benefit of the sheriff although it authorized proceedings to ascertain title to personal property taken in execution. This Act was later extended throughout the Commonwealth and was expanded by the Act of May 26, 1897, P. L. 95. Section 11 of that Act imposed upon the claimant the responsibility of filing a bond and the statement of title but left the sheriff in an unprotected position since it did not provide that the sheriff could proceed without liability in the event the claimant failed to comply with the requirement that a bond and a statement of title be filed. In fact, in Bain Page 235} v. Lyle, 68 Pa. 60 (1871), the court pointed out that an order discharging the sheriff's petition for interpleader did not determine title or prejudice the claimant's right of ...