Lehigh Coal & Navigation Co. v. Skeele Coal Co.

265 Pa. 534 | Pa. | 1920

Opinion by

Mr. Justice Moschzisker,

This is an appeal by the plaintiff, who obtained judgment in a proceeding ex contractu commenced by writ of foreign attachment; the sole assignment complains that the court below erred in making absolute garnishee’s rule to “dissolve the attachment, quash the writ and strike off the judgment.”

While numerous contentions are discussed in the paper-books, yet an adequate and proper disposition of the case may be had by determining what plaintiff states as his second question involved: “Was it error to dissolve attachment, quash writ and strike off judgment, at motion of garnishee, on ground that statement did not contain the averments as to nonresidence and property of defendant required in an affidavit of cause of action, no such affidavit having been called for — especially where the statement averred that defendant was a New York corporation and the sheriff’s return showed property of defendant attached in the county?”

Had garnishee, in due season, ruled plaintiff to show cause of action, it may be the latter would have been obliged to file an affidavit containing the averments now insisted upon; but, instead of pursuing this course, garnishee moved to strike off the judgment — probably recognizing that, it being apparent from the record facts, the attachment was not “wholly unwarranted” and, further, that two years had expired since the entry of the judgment, under our cases an application to show cause of action was apt to be viewed with disfavor: see Whiteside v. Oakman, 1 Dallas *294, and authorities cited in note on page *295.

Plaintiff’s declaration avers defendant is a foreign corporation; as such, it is subject to foreign attachment: Com. v. Baxter, 235 Pa. 179, 191. The sheriff’s return shows property of defendant within the jurisdiction of the court below, and the praecipe and writ indicate that fact; furthermore, there is no denial in any of the pleadings that defendant was a nonresident or that it had property in the county at the date of the attachment.

Where, as here, the essential jurisdictional facts appear of record, the statement of claim cannot, after judgment, be successfully attacked on a rule such as now before us. As said by this court in First National Bank of Omaha v. Crosby, 179 Pa. 63, 68, a foreign attachment case: “It is not required that plaintiff’s statement shall set out all the jurisdictional facts; this may be required in an affidavit to show cause of action, but the absence of such facts from the statement is not alone sufficient to prevent judgment for want of a sufficient affidavit of defense, where the existence of such facts is not denied.” This principle fits the case in hand,

We have examined all the authorities cited to us and find none in conflict with our present decision.

The assignment of error is sustained, the order complained of is reversed and the writ and judgment are reinstated.