Wiener v. American Ins. Co. of Boston

• Decision Date: 12 April 1909
• Docket Number: 181
• Citation: 224 Pa. 292,73 A. 443
• Parties: Wiener to use v. American Insurance Company of Boston
• Court: Pennsylvania Supreme Court

73 A. 443

224 Pa. 292

Wiener to use v. American Insurance Company of Boston

No. 181

Supreme Court of Pennsylvania

April 12, 1909

Argued January 5, 1909

Appeal, No. 181, Jan. T., 1908, by Phoenix Insurance Company Garnishee, from order of C.P. No. 2, Phila. Co., Dec. T 1906, No. 30, making absolute rule for judgment against garnishee on answers in case of Louis Wiener to use of J. R Pringle v. The American Insurance Company of Boston, defendant, and Phoenix Insurance Company Garnishee. Affirmed.

Foreign attachment.

Rule on garnishee for judgment on answers.

The opinion of the Supreme Court states the case.

Error assigned was order making absolute rule for judgment.

The assignment of error is overruled and the judgment is affirmed.

Francis S. Laws, with him John F. Lewis, for appellants. -- The writ of attachment at the date of its issuance did not bind anything in the hands of the garnishee: Datz v. Chambers, 3 Pa. Dist. Rep. 353; Opdyke v. Murphy Iron Works, 10 Pa. Dist. Rep. 68; Childs v. Digby, 24 Pa. 23; Penna. R.R. Co. v. Pennock, 51 Pa. 244; Glenny v. Boyd, 26 Pa.Super. 380; Noble v. Oil Co., 79 Pa. 354, Jaffray's App., 101 Pa. 583; Brock v. Brock, 1 Pa. C.C. Rep. 232; Barr v. King, 96 Pa. 485; Chase v. Ninth Nat. Bank, 56 Pa. 355; Beal v. Toby Valley Supply Co., 2 Pa. Dist. Rep. 671; Pain's Pyro-Spectacular Co. v. Lincoln Park, etc., Co., 5 Pa. Dist. Rep. 474; Pierce v. Electric Company, 28 W.N.C. 311; Diener v. Wopsononock Hotel Co., 10 Pa. Dist. Rep. 57; Shaw v. Mining Co., 145 U.S. 444 (12 S.Ct. Repr. 935); Reimers v. Manufacturing Co., 70 Fed. Repr. 573.

The point here contended for is sustained by a large number of well-considered cases, in both the federal and the state courts: Central Trust Co. of New York v. Chattanooga R. & C.R.R. Co., 68 Fed. Repr. 685; Reimers et al. v. Seatco Mfg. Co., 70 Fed. Repr. 573; Douglass v. Ins. Co., 138 N.Y. 209 (33 N.E. Repr. 938); Railroad Co. v. Maggard, 39 Pac. Repr. 985; Central Trust Co. v. Chattanooga, etc., R.R. Co., 68 Fed. Repr. 685.

Theodore F. Jenkins, with him G. Heide Norris, for appellee. -- Where one foreign corporation is indebted to another foreign corporation, the debt will be bound by a foreign attachment in which the creditor is the defendant and the debtor the garnishee: Furness v. Smith, 30 Pa. 520; Bushel v. Com. Ins. Co., 15 S. & R. 173; Fithian v. Railroad Co., 31 Pa. 114; Jones v. Railroad Co., 1 Grant, 457; Morgan v. Neville, 74 Pa. 52; Barr v. King, 96 Pa. 485; Datz v. Chambers, 3 Pa. Dist. Rep. 353; Nat. Fire Ins. Co. v. Chambers, 53 N.J. Eq. 468 (32 A. Repr. 663); Harris v. Balk, 198 U.S. 215 (25 S.Ct. Repr. 625); Penna. R.R. Co. v. Pennock, 51 Pa. 244; Chicago, etc., Ry. Co. v. Sturn, 174 U.S. 710 (19 S.Ct. Repr. 797); Louisville & Nashville R.R. Co. v. Deer, 200 U.S. 176 (26 S.Ct. Repr. 207).

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

This foreign attachment was issued against the American Insurance Company of Boston, a Massachusetts corporation, as defendant, and the Phoenix Insurance Company of New York, a New York corporation, as garnishee. The defendant appeared and judgment was entered against it for want of a sufficient affidavit of defense. Subsequently judgment was entered against the garnishee on its answers to the interrogatories filed, and from that judgment it has appealed. What was attached was a debt due from the garnishee to the defendant in the attachment, and we are asked to say that this was not attachable, because it was not in contemplation of law within the jurisdiction of the court at the time the writ issued. Authorities are not wanting to sustain this contention of the appellant, but we cannot follow them.

If under the attachment in his hands, the sheriff had undertaken to seize tangible property of the defendant in the possession of the garnishee beyond the jurisdiction of the court, such property would not have been bound by the attachment: Pennsylvania Railroad Company v. Pennock, 51 Pa. 244. By the act of June 13, 1836, the goods and effects of a defendant in a foreign attachment in the hands of the garnishee shall, after service of the writ, be bound by it and be in the officer's power, and, if susceptible of seizure or manual occupation, the officer shall proceed to secure the same to answer and abide the judgment of the court in the case. If tangible goods are not in the possession of the garnishee within the jurisdiction of the court out of which the writ of attachment issued, they cannot be touched by that writ and are, therefore, not bound by it. An intangible thing -- a debt due from the garnishee to the defendant -- cannot be actually seized anywhere, but, being an effect of the defendant in the hands of his creditor, is bound by the attachment from the time it is served. "All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts as such have no locus or situs, but accompany the creditor everywhere:" 2 Parsons on Contracts (8th ed.), 702. It does not appear from the answers to the interrogatories that the debt due by the garnishee to the defendant had imposed upon it any "special limitation or provision in respect to the payment." It was payable generally, and unquestionably could have been sued on here in Pennsylvania, and, therefore, was attachable here. "This is the principle and effect of the best considered cases -- the inevitable effect from the nature of transitory actions and the purpose of foreign attachment laws if we would enforce that purpose:" Chicago, Rock Island, etc., Railway v. Sturm, 174 U.S. 170. The rule that to give a court jurisdiction in foreign attachment the res must be within the territorial jurisdiction of the court, applies only to tangible assets, capable of actual seizure, and does not apply to choses in action. Jurisdiction to fasten choses in action by garnishee process depends upon the ability to serve that process upon the debtor of the absent defendant within the jurisdiction of the court: National Fire Insurance Co. v. Chambers, 53 N.J. Eq. 468. This case is cited with approval in Harris v. Balk, 198 U.S. 215. In that case a citizen of North Carolina, indebted to another citizen of that state, was, while temporarily in Maryland, garnisheed by a creditor of the man to whom he owed the money, and judgment was duly entered according to the Maryland practice, and paid. Subsequently the original creditor of the garnishee sued him in North Carolina, and the defense was set up of judgment against the garnishee and its payment by him, but the North Carolina courts held that, as the situs of the debt was in North Carolina, the Maryland judgment was not a bar to a recovery by the North Carolina creditor, and judgment was awarded against the debtor. On a writ of error to the supreme court of the...