In re Garis
39 A. 1110
Pa.
1898
Check Treatment

Opinion by

Mu. Cheek Justice Sterrett,

This appeal brings up for review the action of the court below in issuing the attachment to compel the production and delivery to the appellee of personal property, etc., alleged to belong to the estate of the lunatic.

Summary proceedings, such as were contemplated in this case, rest upon the necessity of maintaining the dignity and authority of the courts by punishing both direct and constructive contempts of their authority: Com. v. Perkins et al., 124 Pa. 48; 4 Bl. Com. 285, 286. In the latter, the learned commentator, referring to ordinary cases of contempt by disobedience to orders made in the progress of a cause, says “ the proceeding is to bo looked upon as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of court.”

Our act of June 16, 1836, section 23, provides that “the power of the several courts of this commonwealth to issue attachments and to inflict summary punishments for contempt of court shall be restricted (inter alia), .... to disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.” In Scott’s case, 1 Grant, 237, it was held that this act has no relation to attachments to enforce decrees in equity when the object is not to inflict punishment, but to compel performance of such decrees. While it was also decided in that case that a decree in equity for the payment of money due upon a contract cannot be enforced by attachment since the act of July 12, 1842, abolishing imprisonment for debt, it has been repeatedly held in later cases that the exception, in the act of 1842, of arrests “ in proceedings for contempt to enforce civil remedies” applies to cases involving breaches of trust: Chew’s Appeal, 44 Pa. 247: Tome’s Appeal, 50 Pa. 285; Church’s Appeal, 103 Pa. 263; Wilson v. Wilson, 142 Pa. 247. It thus appears that jurisdiction to issue attachment, in oases such as that under consideration, is still derived from the common law.

As was said by Mr. Justice Sharsivood at nisi prius (Pierce *502v. Post, 6 Phila. 494) : “ An attachment is never issued against a party or a witness unless he is shown to be in contempt of the court. Pie can only be in contempt by disobeying some process or order of court previously served upon him.” This is undoubtedly the correct practice, as indicated by the cases above cited, whether under the common law or statutes. No case to the contrary has been cited,.and it is confidently believed that no well-considered case to that effect can be found.

The record before us fails to disclose any rule or order on the appellant, prior to the attachment, which he disobeyed or could have disobeyed, because no such rule or order was ever issued or served upon him prior to the rule for attachment. The only thing that is suggested as a possible basis for the attachment proceeding against him is the written request by the appellee, committee of his lunatic wife. It is too clear for argument that such requests or demands, not preceded by a rule to show cause duly issued, served and returned, and an order duly entered by the court, after hearing, are neither rules nor orders of court, and cannot in any proper sense be regarded as the legal equivalents of either. The verbal statement of the court, made at the hearing of the rule for attachment, and recited in the answer to appellant’s rule to set aside the attachment proceedings, is o'f no consequence whatever. Decrees and orders of courts of record cannot be carried in the breast of the judge who makes them. If any regard is to be had to the regular and orderly conduct of judicial proceedings in such courts, all their orders, rules and decrees must be recorded. The verbal order referred to never was recorded, and its first and only appearance in the case is the reference made to it in the appellee’s answer to appellant’s rule to show cause. Further elaboration is unnecessary. There is nothing whatever in the record to ■ justify the attachment proceedings against the appellant. If he has any property or evidences of indebtedness belonging to the estate of his lunatic wife, he ought to turn them over to the committee and save further trouble.

There is no merit in the second and third specifications of error; nor is there anything in either of them that requires discussion. They are both dismissed. The first specification is fully sustained..

It is accordingly ordered that the petition of the Equitable *503Trust Company, committee, etc., praying for a rule on the appellant to show cause why an attachment should not be issued against him, etc., be dismissed, and that all proceedings thereunder be reversed and set aside at the costs of said Equitable Trust Company.