3 A.2d 36 | Pa. Super. Ct. | 1938
Argued October 4, 1938. It was decided, as early as 1788, that a foreign attachment would not lie in this Commonwealth against the executors of a decedent as defendants, and that if so issued it would be quashed: Pringle v. Black's Executors, 2 Dallas 97. This ruling was cited with approval in Bushel v. Commonwealth Ins. Co., 15 S. R. 173, 179, and Shewell v. Keen, 2 Whart. 332.
The Act of June 13, 1836, P.L. 568, (Secs. 43 to 77 *368
of which relate to foreign attachments), as amended by the Acts of March 30, 1905, P.L. 76, and June 21, 1911, P.L. 1097, made no change in the law in this respect. The question came squarely before the Supreme Court in East Bangor Consolidated Slate Co. v.Badger,
Nothing in the latest amendment of April 24, 1931, P.L. 44, 12 PS Sec. 2891, changed the law in this respect. See also Reynoldsv. Nesbitt,
The defect is a fundamental one, and such as to put the plaintiff completely out of court: Pasquinelli v. SouthernMacaroni Mfg. Co.,
The learned court below refused to quash the writ because in its opinion, the affidavit of cause of action set up a claim for services rendered by the plaintiff pursuant to a contract "entered into by the defendants personally." *370 But the affidavit shows that the alleged contract was made by the defendants as executors of August Mautz, deceased, with respect to the assets of the decedent's estate, and the funds sought to be attached were not the individual assets of the executors but the assets belonging to the decedent, which came into the hands of the defendants as his executors, and it is out of the funds of the estate that the plaintiff seeks payment, for it is the funds of the estate, not of the individual executors, which the plaintiff has attempted to seize by his attachment.
While the plaintiff may have a cause of action against the defendants personally, or against such of them as employed him, he did not bring his action in that form. He did not aver, as he was bound to do in order to sustain his cause of action in such case, that the defendants, as individuals, had property, etc., within the jurisdiction of the court issuing the attachment. "To support the writ, it is as necessary that defendant have property within the jurisdiction as that he be beyond it. Both are essential and must be averred": Mindlin v. Saxony Spinning Co.,
It is a matter of substance, not form; for even in actionswhere the defendant has been served, a change of the defendant from a representative to an individual capacity, or vice versa, cannot be made after the statute of limitations has run, for it involves a change of parties: Stine v. Herr, Admx.,
In the present case, the defendants have not been served. They have not appeared and are not in court. The foreign attachment was issued against them in their representative capacity, and in order to compel their appearance in that capacity the property of their decedent *371
was attached in the hands of the garnishee. A right of action against the defendants in a different capacity from that in which the attachment was brought cannot be substituted by amendment. InBender v. Penfield, supra, (p. 59), Mr. Justice STEWART, speaking for the Supreme Court said: "The action had been brought against the estate of a decedent; the amendment bringing upon the record the appellee as the legal representative of the estate, was entirely proper; it introduced no new party, since in the event of recovery the judgment would simply be de bonis testatoris; but by the second amendment the appellee, against her protest, was introduced upon the record to defend not in her representative but in her individual capacity, and had judgment been obtained it would have been de bonis propriis. No truer test can be applied in determining whether a proposed amendment involves a change of parties to the action. If it may involve in personal liability one who was not made a party originally, the amendment, if objected to, should be disallowed, for no one may be held to answer except as required by due process. The negligence here charged was that of the estate of William Weightman; by the first amendment, acquiesced in, that estate was in court to answer through its legal representative, such representative being in court in no other capacity; by the second amendment another and wholly different party, in substitution of the one originally proceeded against, was charged with liability for the alleged negligence, and that too, after right of action against such party had been lost by lapse of time. The fact that the party so introduced individually, happened in this case to have been the legal representative of the estate originally complained against, is a matter of no consequence. The rule admits of no exception based upon such accidental circumstance. Had the legal representative of the Weightman estate been some other than the appellee, it could not be for a moment contended that an amendment could properly be made *372
bringing such party upon the record as a defendant. The principle of the rule applies in the one case as directly as in the other. As was said by this court in Garman v. Glass,
An affidavit of cause of action in a foreign attachment cannot be amended as to matters of substance: Kohl v. Lyons,
The attachment in this case attempted to seize and attach in the hands of the garnishee property of the estate of August Mautz, deceased, which the law had committed to the custody and control of the executors of his will. Under our law that cannot be done; nor can that process be used to compel the appearance of the defendants in their individual capacity. The rule to quash the writ should have been made absolute.
The assignment of error is sustained. The order is reversed and the rule to quash is made absolute.1