Bollinger v. Gallagher, No. 386

No. 386 | Pennsylvania Court of Common Pleas, York County | Oct 5, 1891

Opinion,

Mb. Justice Williams :

The plaintiff, who is the wife of George Bollinger, sues to recover the value of articles taken from the possession of her husband. Her complaint, as stated in the declaration, is that “ John Gallagher, one of the defendants, upon the advice, order, direction, and authority of John P. Johns, the other defendant, and by virtue of certain proceedings alleged to be instituted before Philip S. Bowman, Esq., one of the justices of the peace in and for said county, by said John P. Johns against George Bollinger, seized and attached the said chattels, and on the third day of March sold the same.” This “ seizure, attachment, and sale ” she alleges were unlawful and malicious, and made after the notice of her title to the articles so seized and sold.

Two questions were thus raised, viz.: Was the seizure and sale under the attachment lawful as against the defendant therein, George Bollinger ? If so, does the plaintiff show a title in herself good against her husband’s creditor ? The seventh and eighth assignments relate to the first of these questions.

The learned judge seems to have held that the attachment proceedings were absolutely void, because the plaintiffs affidavit did not set out the non-residence of the defendant. This would have been fatal to the attachment on a motion to quash, but no motion to quash was made. The attachment was returned with a personal service on the defendant. On the return day the defendant appeared in person and by counsel. A trial was had upon the merits, and judgment rendered in favor of the plaintiff for one hundred and fifty dollars, with costs of suit. On this judgment an execution was issued, and by virtue of the execution the attached property was sold. We have no doubt that the sale so made divested the defendant’s title, and justified the sale by the constable, so far as George Bollinger is concerned. The third, seventh, and eighth assignments are therefore sustained.

The seizure and sale having been made under legal process against George Bollinger, we come next to inquire whether the plaintiff showed a title in herself to the articles sued for. She was claiming to be the owner of property in her husband’s possession, and making this claim against one who is shown to be a creditor of her husband. It was therefore her duty to show that she paid for it out of her separate estate : Gamber v. Gamber, 18 Pa. 363" court="Pa." date_filed="1852-05-20" href="https://app.midpage.ai/document/gamber-v-gamber-6229139?utm_source=webapp" opinion_id="6229139">18 Pa. 363; Bradford’s App., 29 Pa. 513" court="Pa." date_filed="1857-07-01" href="https://app.midpage.ai/document/bradfords-appeal-6230479?utm_source=webapp" opinion_id="6230479">29 Pa. 513; Seeds v. Kahler, 76 Pa. 262" court="Pa." date_filed="1874-06-01" href="https://app.midpage.ai/document/seeds-v-kahler-6234824?utm_source=webapp" opinion_id="6234824">76 Pa. 262; Blum v. Ross, 116 Pa. 163" court="Pa." date_filed="1887-04-25" href="https://app.midpage.ai/document/blum-v-ross-6238640?utm_source=webapp" opinion_id="6238640">116 Pa. 163. This she did not do, and because sbe did not, she had no right to recover against her husband’s creditor, or against the officer who executed the process on which the sale took place.

The defendant’s third point should also have been affirmed. The laws of a sister state, affecting the rights of married women, are not taken judicial notice of by the courts of this state; and for that reason they will be assumed to be the same as our own, unless shown by competent evidence to be different. The alleged trespass was committed in this state. The action was brought here. The lex fori was to be applied, unless some reason for refraining from its application was made to appear on the trial. No such reason was shown, and plaintiff was therefore bound to make her case in accordance with the laws of this state. For the reasons now given

The judgment is reversed, and a venire facias de novo awarded.