75 Pa. 417 | Pa. | 1874
The opinion of the court was delivered, May 11th 1874, by
The Act of 8th April 1869, supplementary to the Exemption Law of 1849, 1 Bright. 638, gives to a defendant a right “ to elect to retain his exemption or any part thereof out of any bank-notes, money, stock, judgment or other indebtedness' to such, person.” It is admitted that Thomas S. Jones, the defendant below, duly claimed his exemption out of the effects in the hands of Al’r Solomon, the garnishee. Here, then, there was a clear legal right claimed in time, and yet the court below gave judgment against Jones’s exemption, on the ground that there was a judgment by default against the garnishee, which either he or Jones ought to have prevented. But how could Jones be affected by Solomon’s neglect to appear ? His right was to have his $300 exemption against the plaintiff. Presumptively, as the case stood, Solomon owed a debt to Jones ; and it should he a matter of indifference to him whether the money would go to Jones or to the plaintiff. If the neglect of Solomon to appear can be made to displace the exemption, it would enable the plaintiff and garnishee always, by collusion, to avoid the exemption, and discharge the garnishee to the extent of the plaintiff’s debt. The garnishee can plead to the attachment only that which tends to discharge himself from the debt he owes to the defendant in the attachment, or protect himself against a double recovery. He cannot plead or set up the exemption, this is a personal privilege of the defendant, who must avail himself of it, and here the defendant has done so. It was not the business of the defendant to prevent judgment by default against the garnishee. The real difficulty here is that the judgment by default was erroneously entered. It ought to have followed the facts of the case and to have been so framed as to protect the defendant’s exemption. It was simply a judgment for the amount of the plaintiff’s claim. But every regular judgment in attachment concludes with a discharge of the garnishee to the extent he has to pay under the attachment: Sergeant on Attachment 40; 6 Wharton 181. If, therefore, the garnishee’s debt to the defendant is less than the exemption of $300, an unqualified judgment of discharge would cause the defendant to lose so much of his exemption. But it is very evident that the neglect of the garnishee to appear was his own fault and not that of the defendant, and therefore the garnishee alone should suffer for his omission. Our act relating to attachment has made no provision as to the effect of
We, ourselves, might so enter the judgment, but as the default of the garnishee may have arisen from a misconception of his duty, which the court below might rectify, if injustice would be done by opening the judgment on terms, we shall reverse the judgment below and order a procedendo.
Judgment reversed and a procedendo awarded.