68 Pa. Super. 155 | Pa. Super. Ct. | 1917
Opinion by
The single question for our determination is, should the attaching creditor have judgment against the garnishee on the answers filed. The process of attachment execution is familiar. We suppose we may assume that “in order to sustain an attachment execution, there must be a debt due from the garnishee to the defendant in the judgment which may be payable at the time of the service of the writ or may become payable subsequently.” We quote from Lane’s App., 105 Pa. 49. It would follow the right of an attaching creditor can rise no higher than that of his debtor. What the latter could not sue for and recover from the garnishee is beyond the grasp of an attaching creditor. Let us look then to the origin of the fund in the possession of the garnishee and the essential nature of the obligation or duty that lies at the base of that possession.
Prior to October 15, 1913, one Hollman was conducting a wholesale liquor dealer’s business under a license from the Court of Quarter Sessions of Allegheny County.
It was apparent, however, the sale contemplated was within the class of sales regulated by the Act of March 28, 1905, P. L. 62, commonly known as the “Bulk Sales Act.” Were it not for the provisions of that statute, the parties to the contract could have, inter sese, carried it into complete execution. But because of that act the purchaser needed some protection in order to be assured that what he had bought and paid for might not be thereafter seized by some of the creditors of the seller. That situation resulted in the insertion into the contract of purchase and sale of the following clause: “The payment of the above mentioned sums shall be made in escrow to the firm of Prestley & Nesbit, Attorneys-at-Law, 902 Frick Building, Pittsburgh, Pa., who shall retain the same until said transfer of license shall be granted or refused, at which time, if said license be granted, they shall apply said sums to the amounts appearing to be owing by said Charles S. Hollinan to his creditors and turn the balance, if any, over to him. In case, however, said transfer of said license should be re
Would it have been legally possible for Hollman, the judgment debtor in the present case, to have thereupon maintained an action against the trustees in the possession of the fund for the recovery of the money? It seems clear to us such an action could not have been successfully prosecuted. The agreement had so far been executed that it was beyond his power to revoke it. The interests of other persons had intervened and there was, as we view it, a valuable consideration furnished by the creditors of which the trustees named were bound to take notice. This was the situation when the appellant company, a creditor, issued its writ of attachment execution. We agree with the learned judge below that the fund in the hands of the garnishee was immune from the grasp of the attaching creditor. The garnishee had accepted the trust created in the agreement referred to
On its face the agreement to which we have referred was not, as we view it, either a voluntary assignment for the benefit of creditors or an act of bankruptcy. Whether it was either or both would necessarily depend upon the ascertainment of facts altogether outside of the scope and terms of the agreement. But we do not regard the determination of any such questions as material to the disposition of the single problem here presented. We are satisfied the fund in the hands of the garnishee was beyond the reach of the attaching creditor and that, as a consequence, the conclusion reached by the learned court below was correct.
Judgment affirmed.