Wing v. Bradner

Foreign attachment — Affidavit of defence — Appearance—Practice, O. P.— Act of June 13, 1836 — Act of May 25, 1887. Under the act of 'May 25, 1887, P. L. 271, an affidavit of defence is required in an action of assumpsit commenced by foreign attachment where the defendant has entered a general appearance. Action upon foreign judgment — Affidavit of defence. In an action upon a foreign judgment begun by a foreign attachment an affidavit of defence is required to prevent judgment, where the defendant has entered a general appearance. Assignment for the benefit of creditors — Foreign attachment — Nonresidents — Priority of lien. Where plaintiff and defendant in a foreign attachment both reside in another state,and the defendant has there made a deed of assignment for the benefit of creditors, which has been duly recorded, or of which the plaintiff had notice, he cannot afterwards bring foreign attachment in this state and thus obtain a preference over the general creditors in the state of the residence of both the parties, but this is a matter which affects the regularity of the attachment and is cured by a general appearance and defence made. In such a case where an appearance is entered and judgment obtained, the plaintiff does not obtain any priority of lien on the property attached, as the title to such property has already passed to the assignee in the other state.

Appeal, No. 12, Jan. T., 1894, by defendant, Alonzo Bradner, from order of C. P. Warren Co., Sept. T., 1892, No. 5, entering judgment in favor of plaintiff, Horace Wing. Foreign attachment.. From the record it appeared that on January 14,1885, plaintiff recovered a judgment against defendant in New York. A copy of the record of this judgment was filed with plaintiff’s statement in the present case, and as part thereof. On June 3, 1884, Alonzo Bradner made an assignment for the benefit of creditors. This assignment was recorded in New York and also in Warren county, Pennsylvania. Both plaintiff and defendant were residents of New York. Defendant owned real estate in Warren county, Pennsylvania. Defendant moved to dissolve the attachment, filing the following affidavit in support of the motion: “ Alonzo Bradner being duly sworn saith that both parties, plaintiff and defendant in this case, resided in the county of Livingston, state of New York, at the time this attachment was issued, and still reside there. That the plaintiff had actual notice of the assignment by myself for the benefit of my creditors hereinafter referred to. That the said assignment and supplement thereto was recorded in the county of Livingston on the 4th day of June, 1884, and on the 80th day of June, 1884, and was recorded in Warren county on the 28th day of December, 1892, and on the 28th day of December, 1892, and the record of said assignment is made part of this affidavit.” On March 16, 1893, a rule was granted on plaintiff for security for costs, which was discharged Sept. 8, 1893. On March 31, 1893, plaintiff moved the court to discharge the rule to dissolve the attachment. Pending this rule defendant filed an affidavit of defence setting forth: 1st. That the action is commenced by a foreign attachment and no affidavit of defence is required. 2d. That both the plaintiff and the defendant resided in the state of New York at the time this action was commenced, and the plaintiff cannot sustain an action of foreign attachment where an assignment for the benefit of creditors which was made in the state of New York, prior to the attachment, is in controversy. 3d. The statement of the claim as filed by the plaintiff does not contain the certificate of a judge, chief justice or presiding magistrate that the attestation of the clerk is in due form as required by the act of Congress. Noyes, P. J., filed the following opinions: “ The rule to show cause why the attachment should not be dissolved was improvidently granted and must be stricken off. The affidavit upon which it was obtained does not deny the defendant’s ownership of the land attached- at the time the attachment was served, nor aver any facts inconsistent therewith. Even if it did distinctly aver that the title was not in the defendant but in the assignee for the benefit of creditors, no ground for dissolving the attachment at the instance of the defendant would be disclosed. The assignee has not intervened and would not be bound by any decision as to the title which we might make in the present state of the record. Nothing is alleged against the plaintiff’s right to his writ, nor the regularity of its issue. If he had laid his attachment upon property which is not subject to attachment, the question must be raised by the party injured before we can be called upon to determine it. Rule absolute.” “ Rule for judgment for want of a sufficient affidavit of defence. “ Concurring with the common pleas of Phila. and other counties, we are of the opinion that under the procedure act of 1887 an affidavit of defence is required in an action of assumpsit commenced by foreign attachment, when the defendant has entered a general appearance, and the plaintiff proceeds under that act to obtain it. That the procedure in such an action is regulated by the act is clear, and there is no obstacle to its application in any other law. “ Rule absolute and judgment directed to be entered; amount to be liquidated by the prothonotary.” Errors assigned were (1) making absolute rule to strike off rule to show cause why the attachment should not be dissolved; (2) making absolute rule for judgment for want of a sufficient affidavit of defence; (3) discharge of rule on plaintiff for security for costs.