Renschler v. Pizano
| Decision Date | 21 March 1938 |
| Docket Number | 45 |
| Citation | 329 Pa. 249,198 A. 33 |
| Parties | Renschler v. Pizano (Automobile Underwriters, Inc., Appellant) |
| Court | Pennsylvania Supreme Court |
Argued January 26, 1938
Appeal, No. 45, Jan. T., 1938, from order of C.P. Lackawanna Co., March T., 1936, No. 378, in case of Elmer Renschler v Thomas Pizano and Automobile Underwriters, Inc., intervening defendant. Order affirmed.
Petition by intervenor and rule to open judgment entered in action of trespass.
The opinion of the Supreme Court states the facts.
Decree entered discharging rule, opinion by HOBAN, J. Petitioner appealed.
Error assigned was discharge of rule.
Order affirmed; costs to abide the result.
Thomas D. Caldwell, with him A. A. Vosburg, A. Floyd Vosburg, of Vosburg & Vosburg, for appellant.
R. L Levy, with him Frank T. Butler, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
There is here presented a quest for a remedy against a wrong which cannot be disputed, if the allegations of appellant are true. It is garnishee in an attachment proceeding, and seeks to establish that the judgment on which the attachment was issued had been improperly obtained. It claims an application to open the judgment is the only available and adequate remedy afforded, and accordingly filed a petition to bring about this result. On the other hand, appellee, plaintiff in the judgment, asserts that his garnishee antagonist has a complete and adequate remedy in the attachment proceeding, by therein raising the questions of the validity of the judgment. Thus the issue is made. The court below decided that the remedy is through the attachment.
Plaintiff sued defendant to recover damages for personal injuries received while he was riding in a truck belonging to defendant, due to its negligent operation by defendant's servant. The jury rendered a verdict for plaintiff in the sum of $5,000, upon which judgment was entered. Thereupon plaintiff issued an attachment execution, summoning appellant as garnishee, because it had insured defendant against liability for damages suffered by third persons, caused by the negligent operation of the truck: West v. MacMillan, 301 Pa. 344, 152 A. 104.
Upon being served with the attachment execution, appellant presented its petition to the court below, alleging that, after it received notice of the suit brought by plaintiff against defendant and a copy of the statement of claim, it advised defendant that the policy issued to him did not cover his liability to plaintiff, because the statement of claim set forth that plaintiff was his employee and the liability of defendant, if any, was for the payment of workmen's compensation to plaintiff, which liability was expressly excepted from the policy. Appellant took no part in defense of the action.
The petition avers that defendant did nothing in his own behalf in defense of the suit, but collusively and fraudulently conspired with plaintiff to have a judgment entered against him and to this end permitted an amendment to be made to the statement of claim, after the verdict was rendered, without notice to appellant, in which the allegation of an employee's status by plaintiff was changed to an averment that plaintiff was riding in the truck as a guest with the knowledge and consent of defendant, which amendment changed the cause of action after the statute of limitations had run, and gave the court jurisdiction of the subject matter of the suit, which it did not theretofore have as the claim as originally made was one for workmen's compensation. It was further alleged that the amendment amounted to a fraud on the court, because, in receiving permission to make it, disclosure was not proffered to the court of the effect of the amendment. No testimony given at the trial appears in the record and we learned from counsel at bar that none was stenographically or otherwise recorded, a practice not commended. Plaintiff filed an answer to the petition, in which its material averments were denied.
The court disposed of the matter, on petition and answer, by refusing to open the judgment, in effect holding that the garnishee has a complete and adequate remedy in the attachment proceeding, in which it can present all defenses to payment of the judgment which it may desire to set up. In reaching its conclusion the court relied upon Collins v. O'Donnell, 325 Pa. 366, 191 A. 22, in which we said (p. 367):
Our understanding is that garnishee does not object to working out its rights in the attachment proceeding, provided it can there present its defenses, and is not in any manner precluded or prevented from doing so by the judgment against defendant. Under the circumstances set forth in its petition, we are of opinion that the judgment does not preclude the defenses set up, and that they are just as available to the garnishee in the attachment proceedings as they would be if the judgment was opened. The presentation of the defense to the attachment is the more logical and orderly course.
When we said in the Collins case, "The garnishee may resist the attachment by showing a defense available against the judgment debtor," we did not mean to deny the right to such a defense as is here brought to light, nor mean to say that no defense could be made to the plaintiff's claim of reimbursement from a garnishee because he had a judgment against the defendant, where that judgment was obtained by collusion and fraud; indeed, in that case, one of the averments of the garnishee's answer was fraud and collusion between the plaintiff and defendant. We further observed that attachment execution "in effect is a suit by the judgment debtor to the use of the attaching creditor."
Appellant in support of its position that the judgment should be opened (which it would seem is assumed from an abundance of caution lest its defenses be barred), calls to our attention the statement in 7 Standard Pennsylvania Practice 37: ...
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