Goller v. Wass's Administrator.

• Decision Date: 11 July 1927
• Docket Number: Sept. T., 1925, No. 454.
• Citation: 10D.&C.470
• Parties: Goller v. Wass's Administrator.
• Court: Pennsylvania Court of Judicial Discipline

10 D.&C. 470

Goller v.Wass's Administrator.

Sept. T., 1925, No. 454.

The Judicial Districts of Pennsylvania.

July 11, 1927.

Attachment execution — Rights of attaching creditor — Jury trial.

Where a plaintiff issues an attachment execution and the garnishee enters a plea of nulla bona, upon trial thereof, the plaintiff must offer in evidence his judgment or the writ of attachment execution in order to show that he is a creditor; otherwise the court will direct a verdict for the defendant.

Motions for new trial and for judgment non obstante veredicto. C.P. Somerset Co.

Boose & Boose, for plaintiff; Shaver & Heckman, for defendant.

BERKEY, P.J., July 11, 1927.

The plaintiff, L.R. Goller, issued an attachment execution, Aug. 19, 1925, against Edward Wiltrout, defendant, with clause of scire facias to Asa T. Matthews, administrator of Phoebe A. Wass, deceased, as garnishee.The case was then proceeded with irregularly.

The court, on motion, struck from the record the irregular matters, entering the following order: "The attachment execution stands as the plaintiff's statement of demand, and leave is granted to the plaintiff, L.R. Goller, to rule the defendant or the garnishee, or both, to plead to the plaintiff's statement, by which procedure an issue of fact may be raised and the case go to trial on the disputed matter of facts raised by the pleading."

The garnishee, on Oct. 20, 1926, entered a plea of nulla bona and specially pleaded:

"(a)Edward Wiltrout, on May 27, 1924, was advanced by your administrator the sum of twenty-three and 10/100 ($23.10) dollars, that being the amount which he owed the estate of Phoebe A. Wass, deceased, for the purchase of personal property at the administrator's sale of the personal property of the decedent.

"(b) That on May 9, 1925, Edward Wiltrout assigned to Allen Becket the balance due him, the said Edward Wiltrout, from the estate of Phoebe A. Wass, deceased, and said assignment was filed with the administrator on May 9, 1925.

"(c) The said fund is further liable to reasonable counsel fees to be awarded by the court under the provisions of section 1 of the Act of April 22, 1863, P.L. 527, for services as counsel rendered the garnishee in these proceedings by Daryle R. Heckman, Esq., and C.L. Shaver, Esq., members of the bar of the Courts of Somerset County, Pennsylvania, the amount of which is to be ascertained, determined and fixed, as said Asa T. Matthews is advised and believes, by the Court of Common Pleas of Somerset County, Pennsylvania."

The case went to trial on the issue thus raised, resulting in a directed verdict for the defendant.The case is before the court on motions for new trial and judgment n.o.v.

All the reasons assigned go to the one proposition that the court erred in giving binding instructions to the jury to return the verdict for the defendant.The instructions to the jury were thus stated by the court: "There is no evidence here that this plaintiff is a creditor, and, therefore, [he] is not entitled to a verdict at your hands, and under the law we direct you to return a verdict for the defendant."

The plaintiff in an attachment execution is placed in the position and acquires the right of the debtor: Fessler v. Ellis et al., 40 Pa. 248.His attachment is his suit to reach the debt alleged to be due to his debtor: Corson v. McAfee, 44 Pa. 288, 291;Wherry v. Wherry, 179 Pa. 84, 88.The thirty-fifth section of the Act of June 16, 1836, P.L. 755, declares that a clause in the nature of a scire facias against a garnishee in a foreign attachment shall be inserted in the writ of attachment. . . .In form, then, a writ of attachment execution is like a writ of scire facias which issues on a judgment in foreign attachment. . . .The form of procedure is the same in each: Bonnaffon v. Thompson, 83 Pa. 460, 461.A scire facias contains the substance of a declaration, and, therefore, in suits of this kind, declarations have not been usual (Kean et al. v. Franklin, 5 S. &R. 146, 155); a scire facias, though not in all respects an action, but rather a demand of execution, does in truth partake, in a great measure, of the nature of an action.There would be no impropriety in filing a declaration on a scire facias, though it is seldom done, because there is no occasion for it, as everything necessary to be set forth in a declaration is contained in the body of the scire facias, to which the defendant may plead (Umberger v. Zearing, 8 S. &R. 163, 164), but a scire...