45 A.2d 28 | Pa. | 1945
Argued November 28, 1945. These proceedings were commenced by a writ of foreign attachment by Horace T. Atkins, appellant, against Canadian SKF Co., Ltd., and SKF Industries, Inc., garnishee-appellee, to recover fees for services rendered Canadian SKF Co., Ltd. This appeal is from the decree of the court below quashing the writ of foreign attachment and striking off a judgment previously entered, for the reason that there was no property of the defendant in the hands of the garnishee at the time the writ was served.
During 1942 Horace T. Atkins, appellant, a New York attorney, had performed legal services for the Canadian SKF Co., Ltd., a foreign corporation without *314 any office or representative in this Commonwealth. On October 22, 1943, not having been reimbursed therefor, he caused a writ of foreign attachment to be issued wherein two other garnishees were named. Shortly thereafter SKF Industries, Inc., a Pennsylvania corporation, appellee, was named additional garnishee, and, on November 5, 1943, was served with the writ. No appearances were filed by defendant, Canadian SKF Co., Ltd. In due course judgment was entered against it by default. In answer to interrogatories, appellee-garnishee stated that at the time of service of the writ of foreign attachment defendant was "indebted to us in excess of $40,000 on open accounts existing between the defendant and this garnishee." The answer further alleged that "There was not a balance at any time from the issuing of the writ to the time of answering in favor of defendant in our hands."
Subsequent thereto appellee filed a rule to strike off the judgment previously entered and to quash the writ of foreign attachment. This appeal is from the decree of the court below making said rule absolute for the reason that at the time the writ was served appellee had no property of the defendant in its possession.
Appellant contends (1) that on the date the writ was served the garnishee-appellee had an inchoate right of action for subsequent payments by the Canadian SKF Co., Ltd., and that this inchoate right was property in its possession and the writ was effective to bind all payments subsequently made; and, (2) that the appellee, not having set off its claim against Canadian SKF Co., Ltd., prior to service of the writ, could not do so thereafter.
A writ of foreign attachment is an original writ. It is used to commence an action, not against a person but against a res. "The foundation for the writ is the nonresidence of the defendant and the existence of property belonging to him within the jurisdiction": Kennedy v. Schleindl,
Appellant relies upon Duffy v. 58th Chester Avenue Building Loan Association,
The running accounts constituted mutual debts between the Canadian SKF, Ltd., and the appellee-garnishee. Appellant, however, contests appellee's right to effect a set-off after service of the writ. The Defalcation Act of 1705, 1 Sm. L. 49, section 1, 12 P.S., section 601, has been held to be applicable to cases of attachment execution: Duffy v. 58th ChesterAvenue B. L. Assn., supra, 131, 189 A. at 309; Aarons v.Public Service B. L. Assn.,
The order appealed from is affirmed. Costs to be paid by the appellant.