Swanger v. Snyder
| Decision Date | 24 May 1865 |
| Citation | 50 Pa. 218 |
| Court | Pennsylvania Supreme Court |
| Parties | Swanger <I>versus</I> Snyder. |
Josiah Funk and Grant Weidman, for plaintiff. — 1. To the first three propositions submitted to the court below the answer seems to be "that no such attachments can issue without a previous execution by the justice and return of "no goods," if the defendant lived out of the county and had no notice of the proceeding; but if the jury believe that Swanger, the defendant in the execution-attachments — although not served with process — was notified by the garnishee of the proceedings, and requested to make defence, and he failed to make it, he cannot now avoid the judgment of the court against the garnishee on this merely technical objection. "If the defendant in the judgment wished to raise that or any other technical objection, he should have defended in the case."
In this answer we think there was manifest error. The Act of Assembly which confers jurisdiction upon the court in this case, provides that "No fieri facias shall be issued by any prothonotary until a certificate shall be first produced to him from the justice stating therein that an execution had issued to the proper constable, as directed by this act, and a return thereon that no goods could be found sufficient to satisfy said demand." This act embraces attachments on justice's transcripts, but an execution must first be issued by the justice and a return of nulla bona made: Hitchcock v. Long, 2 W. & S. 169; Drexel v. Man, 6 Id. 343; Cleaverstine v. Law, 5 Pa. L. J. 459; Id., 429 and 430.
The present plaintiff had a right to suppose that such defence would be made, as the garnishee was bound to contest every inch of ground or remain answerable for the fund: Baldy v. Brady, 3 Harris 108; Stoner v. Commonwealth, 4 Id. 392. Even irregularities in the proceedings on the attachment, may be insisted on by the garnishee if there were any, who would be liable to the debtor if he paid over the money on an unsound judgment: Skidmore v. Bradford, 4 Barr 300. The same principle applies to foreign attachments: Myers v. Urich, 1 Binn. 25; Hall, Assignee, v. Knapp, Garnishee, 1 Barr 214. The present plaintiff lived beyond the jurisdiction of the court, and as he was not served, and could not give this case personal attention without additional expense and inconvenience to himself, it would seem reasonable, if the garnishee can in this way relieve himself of the legal duty of contesting the attachment, that notice should be clear and explicit; that no defence would be interposed unless the defendant in the judgment appeared and made it himself. To allow the notice given in this case that effect, would be unjust to the plaintiff, and would be establishing a principle facilitating collusion and fraud between the attaching creditor and the garnishee.
The answer to the fourth point should have been in the affirmative: 1 Bouv. Law Dic. 547.
A. R. Boughter and C. P. Miller, for defendant. — 1. Swanger having been notified of the proceedings, requested to make defence to the attachments in execution before defendant filed his answers, and having failed to do so, cannot now avoid the judgment of the court by setting up the purely technical objection that no executions were issued and returned nulla bona before the attachments were issued. The act says: "that no fieri facias shall issue," &c. An attachment in execution is in the nature of a scire facias, giving the parties a day in court: Ogilsby v. Lee, 7 W. & S. 444; McCormick v. Hancock, 2 Barr 310; Gemmil v. Butler, 4 Id. 233. And so far as it partakes of the nature of a fieri facias is under the control of the court to see that it is not used vexatiously: Kase v. Kase, 10 Casey 131. Such process is not void, but may be cured by acquiescence: Dum v. Fries, 4 Penna. Law Jour. 473. See Green v. Leymer, 3 Watts 381; Hinds v. Scott, 1 Jones 19; Vastine v. Fury, 2 S. & R. 476; Baily v. Wagoner, 17 Id. 327; Spear v. Sampler, 4 Watts 373. Baldy v. Brady and Stoner v. Commonwealth are not applicable to this case; the plaintiff should certainly not complain of his own negligence. See Elliott v. McGovern, 10 Harris 201; Thompson v. Philips, 1 Bald. 246.
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...time of this answering any balance in its hands in favor of the said defendant." [3]See, too, Ogilsby v. Lee, 7 W. & S. 444; Swanger v. Snyder, 50 Pa. 218, 223; Ruff v. Ruff, 85 Pa. 335; Gilmore v. Alexander, 268 Pa. 415, 423, 112 A. 9. [4]The suit was thus within the twenty-year period, as......
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