Breading, Garnishee, v. Siegworth

• Court: Pennsylvania Supreme Court
• Writing for the Court: Armstrong
• Citation: Breading, Garnishee, v. Siegworth, 29 Pa. 396 (Pa. 1857)
• Decision Date: 01 January 1857
• Parties: Breading, Garnishee, versus Siegworth.

29 Pa. 396

Breading, Garnishee, versus Siegworth.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

A. W. Loomis, for plaintiff in error, contended that an issue tried in attachment execution was a proceeding in rem, and as such conclusive on all the world. The 35th section of the Act

June 1836, regulating attachments, provides that goods or chattels, pawned, pledged, or demised, may be attached and levied in satisfaction of the judgment, in the manner allowed in the case of foreign attachment. The 58th section, in relation to actions under the head of foreign attachment, provides that, if issue be taken, and a trial had upon any scire facias, the "jury shall find what goods or effects, if any, were in the hands of the garnishee at the time the attachment was executed, or afterwards, and also the value thereof." This contemplates a single finding, and not a separate issue and trial, in every attachment that may be issued. Such was the case here. It was tried on the comprehensive issue of nulla bona. That verdict was upon the precise point involved here. It finds no goods or effects were in his hands at the rendition of the verdict. This case admits he has received none since. The learned counsel cited and relied upon Geltston v. Hoyt, 3 Wheat. Rep. 246; 1 Green. Ev. § 541; Phelps v. Holker, 1 Dall. Rep. 261; Fitch v. Ross, 4 S. & R. 563; Kilbam v. Woodsworth, 5 John. Rep. 40; Hampton v. Matthews, 2 Harris 106; Gochenaur v. Hostetter, 6 Id. 418.

Shinn and J. E. Brady, for defendant in error.—To make a former verdict and judgment conclusive, it must be between the same parties. The party must have had a right to appear and be heard: Stark. Ev. part 2, §§ 57 and 60; 1 Green. Ev. §§ 523-528; Hart's Appeal, 8 Barr 37; Carmach v. The Commonwealth, 5 Binn. 184; Respublica v. Davis, 3 Yeates 128.

The section 541, cited from 1 Green. Ev. by the gentleman, applies to foreign judgments in rem against vessels, and concludes that the parties in interest in rem must have had notice, or an opportunity to appear and defend: Id. 542, and cases there cited.

Geltston v. Hoyt, 3 Wheat. 246, was an action of trespass; and, although Mr. J. STORY discusses the force of a judgment in rem, it was not a question passed upon by the court. In none of the cases cited was it authoritatively settled that a proceeding by attachment was a proceeding in rem.

The case of Childs v. Digby, 12 Harris 23, decides that the attachment is a proceeding in rem, but also something more, a proceeding against the garnishee personally.

The action of ejectment, a verdict and judgment on the same title for the same land, is not binding on those who are not parties or privies: 1 Stark. Ev. part 2, § 60; Timbers v. Kutz, 6 W. & S. 290; Brutton v. Mitchell, 3 Barr 49; Hurst v. McNeill, 1 W. C. C. R. 70. Siegworth is entitled to his day in court, and to have his cause submitted to a jury.

The opinion of the court was delivered by ARMSTRONG, J.

The question presented by the case stated is whether the verdict and judgment on the execution attachment of Faber against Breading in favour of defendant, is a bar to a recovery in the attachment of Siegworth against Breading, subsequently issued.

The 35th section of the Act of the 16th of June, 1836, regulating execution attachments, provides that, "in case of a debt due to the defendant, or of a deposit of money made by him, or of goods or chattels pawned, pledged, or demised, the same may be attached and levied in satisfaction of the judgment, in the manner allowed in the case of foreign attachment." The object of this act was to reach the means of a debtor wherever they might be, whether placed in the hands of others to screen them from creditors or otherwise, and to apply them to the payment of his debts. A garnishee, with property in his possession, may admit the fact, and he will be liable only according to the truth of his admission; and if he deny the fact, he will be liable to the extent of the proof. It is insisted that this is a proceeding in rem, and that the jury, in Faber's attachment, having found in favour of defendant, that he had no goods or effects of Horner in hand when that cause was tried, it is, whatever may be the truth of the case, a bar to the recovery of the plaintiff in this suit; and that the facts cannot again be contested by any creditor in another action.

In Childs & Co. v. Digby, 12 Harris...