13 Pa. Super. 528 | Pa. Super. Ct. | 1900
This was an action upon a bond given by the defendants to obtain a release of the goods of Samuel Klein & Company from an attachment issued under the Act of March 17, 1869, P. L. 9, as provided in section 3. In due course the plaintiff in the attachment obtained judgment for the amount of his claim, notwithstanding an affidavit of defense in which the allegations of fraud were denied. That judgment has not been paid.
The act provides a mode in which the defendant in the attachment may have a hearing upon the allegations of fraud upon which the attachment issued, and a dissolution of the attachment if they be not sustained. This mode was not pursued in the present case. “ Under the act of 1869 it is for the court to continue or dissolve the attachment. The jury have nothing to do with it. It is a statutory proceeding, and can be proceeded with only as provided by statute. The position contended for by the defendant would make the jury the final judges of the propriety of the attachment. If they can reverse the court and dissolve the attachment, we must concede that they can also restore the attachment by their verdict after it has been dissolved by the court. This brings us to the reductio ad absurdum:” Chief Justice Paxson in Walls v. Campbell, 125 Pa. 346. The defendants in the present case take, what seems to us, the still more untenable position, that although they gave a bond conditioned to pay the debt and costs if judgment should be rendered against the defendants in the attachment, and although such judgment has been obtained, yet there can be no recovery on the bond because the plaintiff cannot show a verdict sustaining the allegations of fraud, when from the very nature of the case the jury had nothing, and could have nothing, to do with those allegations, and, therefore, could render no such verdict. The court correctly held in the attachment suit, that the defendants’ affidavit of defense admitting the debt but denying the allegations of fraud upon which the attachment issued would not prevent judgment, and correctly held in the
Judgment affirmed.
