KELLER and GAWTHROP, JJ., dissent.
Argued April 27, 1923. This was an action of replevin brought by the Automobile Securities Company against Charles D. Scungio for an automobile. The car was found in the possession of the Lawrence Automobile Company, which was thereupon joined as party defendant. The original defendant, Charles D. Scungio, was not found. The Lawrence Automobile Company filed an affidavit of defense. The plaintiff filed a motion for judgment for want of a sufficient affidavit of defense and the court refused to enter judgment. The case then proceeded to trial and the court after the testimony was heard directed the jury to find a verdict for the defendant.
The first question presented by the plaintiff is the refusal of the court to enter judgment for want of a sufficient affidavit of defense. The Act of April 18, 1874, P.L. 64, gives the plaintiff an appeal from the decision of the court below where judgment for want of a sufficient affidavit of defense is refused. This court speaking through Brother PORTER in Kessler v. Perrong, 22 Pa. Super. 578, held in order that the plaintiff may derive any advantage from that statute he must take the appeal before the trial actually takes place. The appellate court cannot in reviewing the record of a jury trial, *Page 364 consider an exception to the action of the court below in discharging a rule for judgment for want of a sufficient affidavit of defense.
The second question is whether the court was justified in directing a verdict for the defendant. The automobile was found in possession of the Lawrence Automobile Company. The plaintiff got possession by virtue of the writ and it was incumbent on it to prove title. The farthest it got in that direction was to show that Scungio, the defendant, on the 28th of June, 1918, a whole year before the writ issued, came to the place of business of another company, the Automobile Storage and Sales Company, to purchase a car and that the automobile in question was then transferred or sold to the Automobile Securities Company by bill of sale, and passed into the possession of Scungio. The plaintiff then endeavored to show that the car had been leased to Scungio. It offered no lease in evidence. It tried to get in a copy of the lease unsigned. Its reason for not producing the best testimony was that the lease was in the custody of a trust company in Pittsburgh. Defendant's counsel objected to the production of a copy and urged upon the court the fact that there was no proof that a search had been made for the lost copy, and that the custodian of the lease should be produced in court and prove its loss and before that was done the copy was not admissible. The lower court followed a well-beaten path in sustaining this objection, see Moore v. Everitt, 20 Pa. Super. 13. There is an orderly method of proving the loss of a writing. This evidence being excluded the plaintiff's case fell and the only alternative was to instruct the jury to find in favor of the defendant.
The appellant raises the point that a general verdict for the defendant was not proper. It seems this matter was not raised at the time when the court directed the verdict for the defendant. The purpose of the trial was to determine as between all the parties, who had the title or right of possession. There is a provision in the Act *Page 365 of April 19, 1901, P.L. 89, section 6, that if any party be found to have only a lien upon said goods and chattels a conditional verdict may be entered, which the court shall enforce in accordance with equitable principles. The court having rightly decided that the plaintiff had shown no title, we do not see how the plaintiff is interested in determining the equities existing between Scungio and the Lawrence Automobile Company. The plaintiff having failed in his action, a new trial would not be granted, merely because of failure to carry out a provision of the act, which was for the benefit of the person having a lien. There is authority for this, at least by inference, in the case of Reber v. Schroeder, 221 Pa. 152. In that case although the act directs that the jury may find the value of the property and damages for its detention and this provision was overlooked, a verdict in favor of the plaintiff was nevertheless sustained and a writ of retorno habendo was allowed. In Brown v. Judge, 77 Pa. Super. 106, the same question arose, and a verdict for the plaintiff without the value being given was held to be all right although it did not give the plaintiff all of which she was entitled.
All the assignments of error are overruled and the judgment is affirmed.
KELLER and GAWTHROP, JJ., dissent.