Bittenger's Appeal

76 Pa. 105 | Pa. | 1874

Judgment was entered in the Supreme Court, May 25th 1874.

Per Curiam.

Yost v. Heffner, 19 P. F. Smith 68, and Landis v. Lyon, 21 P. F. Smith 473, decide that under an attachment execution a defendant is not bound to make his claim of the $300 exemption to the officer serving the attachment. The reason given is that the officer has nothing to do with the collection of the debt and cannot have it appraised. It was held therefore that the defendant might make his claim at the term to which the attachment is returnable, and before the plaintiff has taken any step in the cause to his detriment. In Bancord v. Parker, 15 P. F. Smith 886, it is said also, that the purpose of an early claim is to prevent the accumulation of costs and counsel fees to the plaintiff. In Strouse’s Executor v. Becker, 8 Wright 206, the doctrine of diligence is strongly enforced by Woodward, J., as' to attachments as well as writs of fi. fa. No case is remembered in which the exemption in an attachment execution has been allowed to be claimed later than the term to which the writ is returnable. Here the writ was returnable on the 19th of August, and the claim was not made until the 20th of November following. It is important in a matter of practice such as this, that there should be a definite rule to guide both parties. It is certainly not a hard one to require the defendant to make his claim during the term when he should appear to answer the writ. The court below held that the claim was too late, and we cannot say this was an error. Order affirmed and appeal dismissed with costs to be paid by the appellant.