90 Pa. 254 | Pa. | 1879
delivered the opinion of the court,
The only question in this case is, whether the appellant was too late in claiming the benefit of the exemption law. Suit was commenced against him by attachment- under the Act of March 17th 1869; and after the court had refused to dissolve the attachment, judgment was entered by consent in favor of plaintiffs, coupled with an agreement that the record should “not be used as evidence by he plaintiffs in any pending litigation, for the purpose of sus
The exemption act provides that the officer charged with the execution of any warrant, for levying and selling the property, real or personal of any debtor, shall, if requested by him, cause to be appraised the property which he may elect to retain; “and property thus chosen and appraised, to the value of $300, shall be exempt from levy and sale on the said execution.” It will be observed that the request must be addressed to the officer charged with the execution for levying upon and selling the property. It is against final or execution process that the claim is to be made, and not against original or mesne process, by which property may sometimes be seized or attached and held to answer the plaintiff’s demand. The exemption is declared to be “from levy and sale on execution issued on any judgment,” &c. Hence, the claim need not be made until after judgment has been obtained and execution issued. While attachment in execution is strictly a final or execution process, so far as the debtor is concerned, other forms of attachment are not. In foreign attachment, the first step is the seizure of the non-resident defendant’s property, which, if personal and not perishable, may be held until the claim of the plaintiff is adjudicated; and if he is successful, final process may then issue to sell the same in satisfaction of the judgment. In its inception and before judgment, foreign attachment is a species of mesne process. It is equivalent to a summons for the commencement of a personal action. The proceeding under the Act of 1869, is of the same general nature. When the necessary ground has been laid, the defendant’s property is attached, and may be held to await adjudication of plaintiff’s claim. If he obtains judgment, execution may issue against the property attached. Then, and not before, does the right of the defendant to have the property appraised and set apart to him arise. While he might, perhaps, in anticipation of the execution, make the claim before it is issued,
The order of court setting aside the appraisement is reversed, and the appraisement-is confirmed.