Pontius v. Nesbit et al.

• Decision Date: 07 November 1861
• Citation: 40 Pa. 309
• Parties: Pontius <I>versus</I> Nesbit <I>et al.</I>
• Court: Pennsylvania Supreme Court

40 Pa. 309

Pontius versus Nesbit et al.

Supreme Court of Pennsylvania.

November 7, 1861.

ERROR to the Common Pleas of Union county.

The case was argued here by J. F. & J. M. Linn, for plaintiff in error, who, in support of the right of a plaintiff to more than one form of execution, cited and relied on Tams v. Wardle, 5 W. & S. 22; Kase v. Kase, 10 Casey 128; Baldwin's Estate, 4 Barr 248; Newlin v. Scott, 2 Casey 103; Davis v. Scott, 1 Miles 52; 1 T. & H. Pr. 766.

G. F. Miller and S. H. Orwig, for defendant in error, argued, 1. That the quashing of a writ by the court below was a summary,

interlocutory proceeding, within the discretion of the court, and not the subject of a writ of error: citing Miller v. Sprecher, 2 Yeates 162; Brown v. Ridgeway, 10 Barr 42; Shortz v. Quigly, 1 Binn. 222, 226; Lewis v. Wallick, 3 S. & R. 411. 2. That there must always be an abandonment of the former writ, before a second can regularly issue; and there was no discontinuance in this case until the argument was closed in the court below: 2 Miles 173; Purdon v. Purdon, Id. 55; Davis v. Scott, Id. 164; Grant v. Potts.

J. F. & J. M. Linn, in reply to the argument on the first point of the defendant in error, cited and relied on Commonwealth v. Judges C. P., 3 Binn. 273; Beale v. Dougherty, 3 Id. 432; Adams v. Bush, 5 Watts 289; Harger v. Commissioners, 2 Jones 252; Cassel v. Duncan, 2 S. & R. 57; Barnet v. Ihrie, 1 Rawle 53.

The opinion of the court was delivered, November 7th 1861, by WOODWARD, J.

On the 30th March 1861, plaintiff issued an attachment-execution under the 35th section of the Act of 16th June 1836, relating to executions, and served it on the Lewisburg Bank; but finding that the defendants had no deposits there, he issued, on the 13th April 1861, an attachment under the 32d section of the same act, with a view of attaching stock which the defendants, or one of them, held in that bank, in the name of Mary Hayes.

The court, on motion, set aside the latter writ, on the ground that the former one had not been abandoned or discontinued, and that plaintiff was not entitled to two attachments at the same time. To this judgment the present writ of error was taken, and we are now moved to quash it on the ground that a writ of error will not lie to such an exercise of mere discretion.

A writ of error lies in all cases in which a court of record has given a final judgment or made an award in nature of a judgment, or where judgment has been arrested, or, on an appeal from a justice, has been dismissed, or on an award of execution: 3 Barr 273; 2 S. & R. 57; Ibid. 392; 2 Jones 251. If the dismissal of...