Melloy's Sons v. Deal & Burtis
Syllabus
Summary
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Opinion of the Court
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Opinion, Mb. Justice Sterrett:
The writ of foreign attachment, having been duly executed, was returned to first day of March Term, 1886, and, in obedience to summons, the garnishees, Janney and Andrews, appeared by attorney. As to defendants in the writ, the return was nihil liabent. They never appeared either in person or by attorney; and this writ of error is defended in their behalf by the garnishees.
The third term of court, after execution of the writ, commencing September 20th, and ending December 5,1886, passed without any further' action having been taken by plaintiffs. On the twelfth day of December term they filed a declaration, and a month thereafter took judgment against defendants for want of appearance. That was immediately followed by scire facias against the garnishees, rule on them to answer, etc., and plea of nulla bona. On application of garnishees’ attorney, March 2, 1887, a rule was granted to show cause why the judgment against defendants should not be stricken off. That rule was afterwards made absolute. The action of the court in thus striking off the judgment at the instance of the garnishees, is the subject of complaint in the several specifications of error.
It is contended the judgment was regularly entered after declaration filed and therefore valid, but, whether valid or not, the garnishees, being strangers to the judgment, had no standing in the court below to question its validity, nor, for same reason, have they any right to defend the writ of error here. These are the subjects of inquiry suggested by the record.
Foreign attachment is a statutory remedy, the proceedings in which aie regulated by our act of assembly. In its inception, it is necessarily a proceeding in rem, and sometimes continues so throughout. One of its objects is to secure the appearance of *166 the non-resident defendant and the presentation of his defence, if any he has; but, in view of his non-residence in the state and absence from the county, when and where the writ issues, he is not required to appear on the return day of the writ. Two full terms, after its execution, are given him within which he may appear in person or by attorney. The 53d section of the act of June 13, 1836, declares: “ It shall be lawful for the plaintiff at the third term of the court after the execution of the writ aforesaid, if he shall have filed his declaration, to take judgment thereon against the defendant for default of appearance, unless the attachment before that time be dissolved.” This being the only provision in the act for taking judgment by default against the defendant, if plaintiff fails to avail himself of it, at the time and in the manner therein specified, what right has he to do so at the next or any subsequent term ? The act itself recognizes no such right, and we are not aware of any such general practice under it as should be regarded as equivalent to the sanction of law.
Moreover, the declaration was not filed before the return day of the writ, nor indeed until after the expiration of the term at which plaintiff was authorized by the act to take judgment for default of appearance. In actions commenced by summons, when the same has been returned duly served on defendant, the act of 1836 declares: “It shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance,” etc. Under that section it has been repeatedly held that filing a declaration before the return day of the writ, is a condition precedent to the right of the plaintiff to take judgment: Foreman v. Schricon, 8 W. & S. 43 ; Dennison v. Leech, 9 Pa. 164 ; Black v. Johns, 68 Pa. 83 ; Kohler v. Luekenbaugh, 84 Pa. 258 .
While the phraseology of the two sections is not precisely the same — that of the one being, “ if he shall have filed his declaration,” and the other, “ having filed his declaration,” — it is substantially the same; and, inasmuch as the object of both writs is to bring the defendant into court, there appears to be no good reason why the requirement as to filing a declaration, should not receive the same construction in both. It is true, the defendant in foreign attachment has two full terms, after execution of the writ, in which to appear; but he may appear *167 on the return day, and. if he does, he ought to be able to find upon the record a declaration setting forth the cause of action. It is quite as necessary in the one case as in the other; and, if plaintiff wishes to avail himself of the right to take judgment for want of appearance, there is no good reason why he should not be required to file his declaration before return day of the writ. We are therefore of opinion that the judgment vras irregular and invalid for the reason that the declaration was not filed in proper time. It follows that if the defendants had appeared in person or by attorney they would have had a right to insist that the judgment be sticken off.
But, assuming for argument sake, that the judgment was-invalid, it is further contended that inasmuch as the garnishees are strangers to it, they had no right to question its regularity or validity.
We cannot assent to that proposition. While the garnishee in foreign attachment is not a p>arty to the judgment against defendant in the writ, it is not quite accurate to say he is a stranger thereto in the sense intended by plaintiff. The judgment is necessarily the foundation of subsequent proceedings against the garnishee, by which it is sought to take the property or effects of the defendant, attached in his hands, and apply the same to plaintiff’s claim. As a general rule the garnishee is bound to see that the proceedings to that end are not illegal. In a legal point of view, his relation to the defendant in a writ of foreign attachment is not always the same. In some cases, he is simply bailee of defendant’s property. In others, he is his debtor, or he may be either bailee or debtor with a counter claim of his own, consisting of a special lien or a set-off; or, he may be a trustee of money or property under a valid trust created by the defendant in favor of another party. In either case, when he occupies the position of bailee or trustee, it is his right, as well as his duty, for his own protection if nothing more, to insist that no property or effects be taken out of his hands except upon valid process. That duty, if it has not existed before, certainly arises when the garnishee is called upon by scire facias to show cause why plaintiff should not have satisfaction of his judgment out of the estate or effects of the defendant in his hands or possession. The *168 scire facias is predicated of a valid judgment against the nonresident defendant, and if the garnishee is aware that no such judgment exists, or if he has any other just ground of defence, he has a right to interpose it. If he neglects to do so, and the attached property is taken from him, he may become personally liable to those whose interests he could and should have protected: 2 Tr. & Haly Prac., § 2289; Serg. on Att., 113, etc.
It has been held that under the general plea of nulla bona the garnishee may, on trial of the issue, take advantage of the invalidity of the judgment on which the scire facias issued: Pancake v. Harris, 10 S. & R. 109; Thornton v. Bonham, 2 Pa. 102 . If he can do that, there is no good reason why he may not apply to the court in behalf of the non-resident defendant, and have an improvidently granted judgment stricken off, as was done in this case.
The specifications of error are not sustained.
Judgment affirmed.
Dissent
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Opinion Dissenting, Mr. Justice Mitchell :
That Foreman v. Schricon, 8 W. & S. 43 , 'was wrongly decided has never been doubtful in the professional mind. The decision overturned the settled previous practice, although that practice had been sustained, even under the act of 1724, by the decision of this court: Morrison v. Wetherill, 8 S. & R. 502. How much more clearly the practice was correct under the act of 1836 than it was under the act of 1724, was demonstrated by the late Chief Justice Sharswood in May v. Sharp, 1 Tr. & Haly, 274, ed. 1867. No answer to his argument has ever been attempted, though this court has on several later occasions followed the ruling in Foreman v. Schricon. But the bar has never accepted or followed the rule in Philadelphia, and the cases of Dennison v. Leech, 9 Pa. 164 , and Kohler v. Luckenbaugh, 84 Pa. 258 , appear to show that the bar, at least in Allegheny and York counties, have equally maintained their former views and practice. True the courts of these counties, when expressly called upon, have bowed to the authority of this court and followed Foreman v. Schricon; but in Philadelphia, certainly, they have rarely been called upon to do so. The rule of that case has been “ effectively repealed,” not, as the brilliant Chief Justice said of the act of *169 1724, “by the indolence of the profession,” but by its imperative convenience.
As it is a mere question of practice, involving no principle of law, and unsettling no legal rights by the change, I am of opinion, notwithstanding the lapse of time and the cases of acquiescence in this court, that Forqman v. Scliricon ought to be overruled and the true reading of the statute reasserted. But whether it be worth while to do this or not, I am altogether opposed to extending the rule to a new case to which it has not heretofore been applied, and to which its application would be especially inconvenient.
There is no necessity to do so. The phraseology of the sections relating to actions commenced by summons and by foreign attachment is not identical. The natural meaning of the words, to be sure, is the same; but the fact that the natural meaning has been distorted in one case does not require that it should also be distorted in the other.
Since the passage of the procedure act of 1887 the rule of Foreman v. Scliricon has been practically superseded in actions commenced by summons, and there is therefore all the less difficulty in establishing a different and correct rule in foreign attachment.
The practice in foreign attachment has not been uniform throughout the state. The experience of the members of this court shows three variations as to the time when a narr must be filed, according to the practice of the courts in their various districts: (1) Before the return day. (2) Before the defendant’s last day for appearing, i. e., before the third term. (8) Any time before taking judgment. In other parts of the state there may be other variations, but these are sufficient to show that foreign attachment has not been generally understood by the profession as coming within the rule of Foreman v. Schricon. There are reasons why it would be specially inconvenient. The writ is often issued hastily to catch goods while within the jurisdiction, and counsel frequently have to act at some distance from the plaintiffs and require time to get full information. Without enlarging upon these reasons I am of opinion that as the question has never been decided in this court, and the practice in the local courts is not uniform, we are not bound to take a second step in a wrong *170 direction, but are at liberty to make a new start and decide it rightly according to the natural meaning of the words used in the statute.*
* See act of May 10, 1889, P. L.
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