Kohl v. Lyons

• Decision Date: 29 January 1937
• Docket Number: 260-1936
• Citation: 189 A. 498,125 Pa.Super. 347
• Parties: Kohl v. Lyons et al. (O'Malley, Appellant)
• Court: Pennsylvania Superior Court

189 A. 498

125 Pa.Super. 347

Kohl v. Lyons et al. (O'Malley, Appellant)

No. 260-1936

Superior Court of Pennsylvania

January 29, 1937

Argued October 22, 1936

Appeal from order of M. C. Phila. Co., April T., 1936, No. 554, in case of William A. Kohl v. Arthur E. Lyons et al garnishees, and M. O'Malley, garnishee.

Foreign attachment proceeding.

The facts are stated in the opinion of the Superior Court.

Rule by garnishee to quash attachment discharged, opinion by Crane J. Garnishee appealed.

Error assigned was discharge of rule.

Order reversed.

Joseph B. Quinn, for appellant.

James McG. Mallie, with him James F. Boylan, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Rhodes, J.

This is an appeal from the refusal of the court below to quash a writ of foreign attachment. The question for our consideration is whether it appears from the record before us that the court below erred in refusing to quash the writ. The record consists of affidavit of cause of action plaintiff's statement of claim in assumpsit, and petition of garnishee for rule to show cause why writ of foreign attachment should not be quashed. Rule to quash the writ was issued and then discharged by the court below. This appeal by the garnishee followed.

If the affidavit of cause of action is sufficient the discharge of the rule was proper. The affidavit of cause of action sets forth that plaintiff is an undertaker of the city of Philadelphia; that defendant is "Arthur A. Lyons, who resides at Hillcrest Place, North Caldwell, New Jersey, but who has property located in the County of Philadelphia, State of Pennsylvania"; that plaintiff, at Philadelphia, at the special instance and oral request of defendant, furnished goods, merchandise and services to defendant in the nature of a complete funeral for the mother of defendant, of the character and for the prices set forth in copy of plaintiff's book of original entry attached thereto; that the prices charged for the merchandise and services were just and reasonable and the prices which defendant orally promised to pay plaintiff for the same; that there is a balance due of $ 314.58, which defendant has refused to pay after demand. The exhibit attached to the affidavit of cause of action sets forth such merchandise and services in the amount of $ 431 for funeral of Elizabeth M. Hines, and shows charge -- "In account with Estate of Elizabeth Hines."

Appellant's objections to the affidavit of cause of action may be summarized as follows: (1) It is based on an oral promise to answer for the debt of another; (2) it attempts to hold defendant for a funeral bill on an original undertaking without reciting any individual advantage to the defendant from the alleged agreement; (3) the copy of plaintiff's book of original entry attached thereto discloses that nothing was sold or charged to the defendant, but that the charge was to a third party; (4) the affidavit lacks a positive oath, being on information and belief; (5) the affidavit does not aver that the defendant is a nonresident of Pennsylvania.

Process by foreign attachment is a creature of statute and is in derogation of the common law. Morinelli v. H. P. Garin Co. et al., 100 Pa.Super. 510. The foundation for the writ of foreign attachment is that the defendant is beyond the reach of process and his property within it. Pennsylvania Railroad Co. v. Pennock, 51 Pa. 244; Raymond v. Leishman, 243 Pa. 64, 69, 89 A. 791, 793; David E. Kennedy, Inc., v. Schleindl, 290 Pa. 38, 137 A. 815. For these reasons strict adherence to all requirements is necessary; and in our early judicial history amendments were not even permitted. Eldridge v. Robinson, 4 Serge. & Rawle 548; Frankel v. Donehoo et al., 306 Pa. 52, 158 A. 570. It is still the rule that there can be no amendment as to matters of substance, although amendments to formal matters are now frequently allowed. G. B. Hurt, Inc., v. Fuller Canneries Co., 263 Pa. 238, 106 A. 248; Frankel v. Donehoo et al., supra. An affidavit of cause of action in a foreign attachment must still aver every jurisdictional and substantive fact requisite to its validity. It must set out a good cause of action and such facts as give the court jurisdiction. Mindlin et al. v. Saxony Spinning Co. et al., 261 Pa. 354, 356, 104 A. 598.

Much of the argument in this case goes outside the record. This is not a case where such matters can be considered. Pasquinelli v. Southern Macaroni Mfg. Co., 272 Pa. 468, 116 A. 372. We are concerned here only with the question whether a fatal defect or fundamental irregularity appears in the record itself.

One of the essential and most important jurisdictional facts which must be averred and upon which the writ of foreign attachment must be based is the nonresidence of the defendant. (See Act of June 13, 1836, P. L. 568, § 44, as amended, 12 PS § 2891.) "Nonresidence of the defendant in the state is a requisite to the validity of a foreign attachment": Jacobs v. Spring, 286 Pa. 113, at page 114, 132 A. 918, at page 919. "Nonresidence in this state, and not residence in another state, is the test of the jurisdiction of the court to issue the writ": Raymond v. Leishman, supra, 243 Pa. 64 at page 70, 89 A. 791, at page 793. The affidavit of cause of action in the instant case fails to show that necessary jurisdictional fact. The...