Mengel v. Connecticut Fire Ins. Co.
| Decision Date | 23 July 1897 |
| Docket Number | 178-1897 |
| Citation | 5 Pa.Super. 491 |
| Parties | John Mengel, Appellant, v. The Connecticut Fire Insurance Company of Hartford, Connecticut, Garnishee |
| Court | Pennsylvania Superior Court |
Argued May 7, 1897
Appeal by plaintiff, from judgment of C. P. No. 3, Allegheny County-1894, No. 486, on verdict for defendant.
Attachment sur judgment. Before McClung, J.
The facts sufficiently appear in the opinion of the court.
Verdict and judgment for defendant. Plaintiff appealed.
Error assigned was in sustaining defendant's objection to plaintiff's offer to prove by Wm. B. Swager certain facts which are set out in the opinion of the court.
Chas W. Dahlinger, for appellant, cited Drake on Attachment, sec 672, p. 603; Waples on Attachment and Garnishment sec. 16, p. 520; 2 Black on Judgments, sec 593, p. 709; 1 Freeman on Judgments, sec. 167, p. 308; Webster v. Adams, 58 Me. 317.
No one will dispute the rule that judgments in general are conclusive only between parties and privies: Peterson v. Lothrop, 34 Pa. 223.
A vendee stands in privity to his vendor only in respect to acts suffered or done before the title was conveyed: Com. v. Dieffenbach, 3 Grant, 375. See also Ruff v. Ruff, 85 Pa. 333.
It has been held, and never overruled, so far as appellant's counsel knows, that if the attachment be served on the garnishee before suit brought on the claim attached, the garnishee is bound to plead in abatement, but if afterward, he may plead it specially in bar: Irvine v. Bank, 2 W. & S. 190; Maynard v. Nekervis, 9 Pa. 81; Hunter's Appeal, 72 Pa. 343.
A. B. Reid, with him A. V. D. Watterson, for appellee, relied on Brown v. Scott, 51 Pa. 362.
The true measure of the duty of a garnishee, if that is what the counsel means to assert here, is that " in good faith he shall see that the money is recovered against him in due course of law:" Anderson v. Young's Executors, 21 Pa. 443.
An attaching creditor can acquire no claim against the garnishee superior to that which the debtor had: Riddle v. Etting, 32 Pa. 412; Dougherty v. Hunter, 54 Pa. 380.
The garnishee may plead anything against the attaching creditor that he might plead against his original creditors: Bank v. Little, 8 W. & S. 207.
Service of an attachment execution places the attaching creditor in the shoes of the original defendant: Roig v. Tim, 103 Pa. 115; Reed v. Penrose, 36 Pa. 214; Baldwin's Est., 4 Pa. 248.
Upon the general principle of the conclusiveness of judgments, who are or are not parties, either directly or in interest, we cite: Greenleaf on Evidence, sec. 535; Strayer v. Johnson, 110 Pa. 21; Fell v. Bennett, 110 Pa. 181. The case to which we refer and which controls this case is Corson et al. v. McAfee, 44 Pa. 288.
Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
The method in which this case was heard and determined in the court below was an unusual one, yet perfectly proper and we see in it nothing to criticize. All the facts were embodied in an offer on the part of the plaintiff and an objection on the part of the defendant, which was agreed upon by both parties to the issue as a fair, exact and correct statement of all the facts in the case. It was, therefore, considered by the court below and will have to be considered here, as in the nature of a case stated.
William B. Swager was the owner of a property insured by the defendant company which was destroyed by fire. He brought his suit in the county of Allegheny for the purpose of recovering the amount of the policy. Upon the trial of that issue it was determined that there was no money due and owing from the defendant company to Swager. The plaintiff who was a creditor of Swager's then issued an attachment execution upon a judgment he held against Swager against the defendant as garnishee, to which the defendant entered a plea of nulla bona upon which this issue was framed. The defendant's defense was that by the previous trial it was determined that nothing was due from it to Swager, and therefore they could not be compelled to pay anything alleged to be due from them to Swager in this issue, there being no allegation of fraud or collusion in obtaining the verdict upon the former trial. The court below upon this state of facts, directed a verdict, and it is this direction which is assigned for error.
The action of the court below is clearly in accord with the law of Pennsylvania. While the plaintiff's position seems to be sustained by the case of Webster v. Adams, 58 Me. 317, that is the only decision in favor of that doctrine to be found anywhere in the books, and it certainly is not now, and never was, the law of this state. The doctrine that the attaching creditor can acquire no claim against the garnishee superior to that which the debtor had, is decided over and over again in this state: Riddle v. Etting, 32 Pa. 412; Dougherty v. Hunter, 54 Pa. 380; Roig v. Tim, 103 Pa. 115; Reed v. Penrose, 36 Pa. 214.
In the latter case Justice Strong says: " It may be premised that the effect of an attachment execution served wherever it lies is to place the attaching creditor in the same relation to the garnishee as that occupied by the debtor before the attachment was laid."
This is the logic of all the decisions upon that question in this state. If it were not true, a plaintiff claiming money due from another, which claim was disputed and litigated and determined in favor of the defendant, the defendant could be sued as garnishee by any one or all successively of a hundred...
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