26 Pa. Super. 380 | Pa. Super. Ct. | 1904
Opinion by
The plaintiffs, on November 25, 1902, instituted an action
A proceeding by foreign attachment is for certain purposes a proceeding in rem, and personal notice to the defendant is not required, since the action proceeds on the ground that actual notice cannot be given: Wilson v. Mechanics’ Savings Bank, 45 Pa. 488; Christmas v. Biddle, 13 Pa. 223; Anderson v. Young, 21 Pa. 443; Coleman’s Appeal, 75 Pa. 441. A pending foreign attachment, in which no appearance has been entered by the defendant, is as between the plaintiff and defendant a proceeding in rem; a judgment entered in sucha case binds only the property attached, or to speak more accurately only the interest of the defendant in the property attached, under the Act of June 13, 1836, P. L. 568, and the statute provides no process for the collection of the claim out of property of the defendant not bound by the original attachment : Wilson v. Mechanics’ Savings Bank, 45 Pa. 488; Smith v. Eyre, 149 Pa. 272; Megee v. Beirne, 39 Pa. 50. When a garnishee named in the' original writ has not been served, an alias writ may be issued for the purpose of carrying on the proceeding against the property which has already been indicated as its object. The writ and the return of the sheriff thereto must determine what property is the subject of the proceeding, and what property of the defendant may be bound by any judgment entered against the defendant in default of an appearance: Pennsylvania Railroad Company v. Pennock, 51 Pa. 244. A plaintiff is entitled to judgment against a defendant in default of an appearance at the third term after the execution of the writ, but such a judgment binds only the interest of the defendant in the property attached. This appellant was entitled to judgment against the defendant in default of an appearance, but that judgment bound only the property in the hands of the garnishees served in the original proceeding, and not the property against which he subsequently attempted to make his judgment effective. If the contention of the appellant is well founded, a plaintiff may cause certain property of. a defendant to be seized under a writ of foreign attachment; at the second subsequent term he may cause other property of the same defendant to be seized under an alias writ
The judgment is affirmed.