27 Pa. Super. 546 | Pa. Super. Ct. | 1905
Opinion by
In an action of assumpsit to recover the price of goods sold and delivered, the defendant replied by affidavit admitting the indebtedness but averring (1) that the plaintiffs were indebted to him in a greater sum; (2) that by a foreign attachment instituted before this suit was brought, the moneys alleged to be due to the plaintiffs were attached in his hands as garnishee, and suggesting that the plaintiffs were not entitled to judgment in this suit until the foreign attachment proceeding should be determined. The court gave judgment for want of a sufficient affidavit of defense. Four days afterward the defendant applied for and obtained a rule to show cause why execution should not be stayed pending the proceeding in foreign attachment. The plaintiffs filed an answer setting forth what was not distinctly shown in the affidavit of defense nor in the affidavit upon which the rule was granted, namely, that the plaintiff in the attachment was the defendant in this action and judgment. This appeal is from the order discharging that rule, and no other matter is assigned for error.
The question whether an appeal lies from such an order was not raised upon the argument, and in disposing of the appeal upon its merits we are not to be understood as establishing a precedent for future cases. The general rule is that no appeal lies from the refusal to stay or set aside an execution where the application is based on an allegation of facts outside the record: Stephens v. Addis, 19 Pa. Superior Ct. 185 and cases there cited. But passing that objection, we think there is no merit in the appeal.
A person may by foreign attachment attach goods in his own hands belonging to a defendant, or money which he himself owes to a defendant: Coble v. Nonemaker, 78 Pa. 501; Moyer v. Lobengeir, 4 Watts, 390. The mere pendency of such an attachment does not bar his creditor, the defendant in the
The order is affirmed.