Williamson v. McCormick

Decision Date06 May 1889
Docket Number72
PartiesJOHN WILLIAMSON ET AL. v. T. J. McCORMICK
CourtPennsylvania Supreme Court

Argued March 17, 1889

ERROR TO THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.

No. 72 January Term 1889, Sup. Ct.; court below, No. 605 October Term 1888, C.P.

On August 18, 1888, judgments were entered against Thomas J McCormick, on two notes with warrant of attorney, for $400 and $300 respectively, in favor of Thomas McCormick, his father. Executions issued immediately and were placed in the hands of the sheriff, who made a levy and closed up the defendant's store.

On August 25, 1888, John Williamson and George Wallace, trading as Williamson & Wallace, to whom Thomas J. McCormick was indebted, caused to be issued a writ of attachment, under the act of March 17, 1869, P.L. 8, returnable to the next term. Upon this writ the personal property of the defendant was attached and the writ served personally. The defendant entered an appearance, by attorney, on September 3, 1888, and on the same day filed his affidavit denying the allegation of fraud, and obtained a rule to show cause why the attachment should not be dissolved, returnable to September 17, 1888. Depositions were taken on both sides.

On September 17, 1888, at the argument of the rule to dissolve the defendant moved to quash the writ for the reason that it was made returnable to the next term, which would begin October 7, 1888, when it should have been made returnable to the first return day next after the writ issued, which, by act of May 25, 1871, P.L. 1150, applicable to Luzerne county was the 2d Monday of September.

After argument, the court, WOODWARD, J., citing act of May 25, 1871, P.L. 1150; act of March 17, 1869, P.L. 8; Parks v. Watts, 112 Pa. 4, allowed the motion of the defendant and ordered the writ to be quashed, whereupon the plaintiffs took this writ, assigning the said order as error.

Judgment affirmed.

Mr. E. F. McGovern, for plaintiffs in error:

1. The personal service upon a defendant of a writ of attachment, is equivalent to the service of a summons, and though the attachment be irregular, it is error to quash it and thus entirely displace the case: Sharpless v. Ziegler, 92 Pa. 468; Biddle v. Black, 99 Pa. 382. After such service, the appearance of the defendant generally, and his subsequent steps, cured any irregularity or defect in the return day of the writ: Lindsley v. Malone, 23 Pa. 24; Loewenstein v. Sheetz, 7 Phila. 361.

2. The defendant should have moved to quash the attachment at the earliest moment after he appeared. An objection may be made to process before appearance, but not after: Poor v. Colburn, 57 Pa. 415; Schober v. Mather, 49 Pa. 21; Sherer v. Waston Bank, 33 Pa. 134; Loewenstein v. Sheetz, 7 Phila. 361; Zion Church v. St. Peter's Church, 5 W. & S. 217. Parks v. Watts, 112 Pa. 4, is to be distinguished. In that case the defendant appeared by counsel on the return day of the writ, for the especial purpose of moving to quash.

Mr. John McGahren, for the defendant in error, filed no paper books.

Before PAXSON, C.J., STERRETT, GREEN, CLARK and MITCHELL, JJ.

OPINION

JUSTICE STERRETT:

Prior to the act of May 25, 1871, P.L. 1150, the first day of each term, one of which commenced on the fourth Monday of October, was a return day for all writs of summons and other process issued out of the Courts of Common Pleas and Orphans' Court of Luzerne county. To these were added, by the act above mentioned, the first Monday of June and second Monday of September, thus making six return days, in each year, for all such writs and processes thereafter issued by said courts.

The writ of attachment, under the act of 1869, in this case, was issued August 25, 1888, returnable, not on the next return day, but to the first Monday of October then next ensuing. On September 3, 1888, the defendant, having filed an affidavit obtained a rule to show cause why the attachment should not be dissolved, and afterwards moved the court to quash the writ on the ground that it was not...

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    • United States
    • West Virginia Supreme Court
    • March 7, 1905
    ...Horst, 31 Minn. 479, 18 N. W. 283; Roberts v. Allman, 106 N. C. 391, 11 S. E. 424; Rattan v. Stone, 4 Ill. 540; Williamson v. McCormlck, 126 Pa. 274, 17 Atl. 591. The correctness of the main proposition asserted in these cases is verified by the common-law text-writers and decisions. That w......
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    ...in attachment execution, see Provident Trust Co. v. Kothman, 321 Pa. 1-77, 187, 183 A. 793, 104 A.L.R. 1275; Williamson v. McCormick, 126 Pa. 274, 17 A. 591; in foreign attachment, Pasquinolli v. Southern Macaroni Mfg. Co., 272 Pa. 468, 473 et seq., 116 A. 372; Christian v. Bennett, 317 Pa.......
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    ...Johnson's App., 9 Pa. 416; Schenley v. Com., 36 Pa. 29; D. & H. Canal Co. v. Loftus, 71 Pa. 418; Wilson v. Kelly, 81 Pa. 412; Williamson v. McCormick, 126 Pa. 274; Fletcher v. Menken, 37 Ark. 206; Swanger Snyder, 50 Pa. 218; Poor v. Colburn, 57 Pa. 416; Conklin v. Harris, 5 Ala. 213; Morris......
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