164 Pa. 533 | Pa. | 1894
Opinion by
The judgment against the garnishee, appellant, on the attachment execution, being out of the course of the common law and founded entirely on statute, must be shown to rest on positive provision. The act of June 16,1836, § 33, authorizes the issue of “ process in the nature of an attachment .... with a clause of summons .... in the nature of a writ of scire facias against garnishees in a foreign attachment; and thereupon the plaintiff may proceed to judgment .... in the manner allowed in cases of foreign attachment against personal estate:” P. L. 767. We must look therefore to the law of foreign attachment for the rules governing the present case.
It was said by Sergeant, J., in Layman v. Beam, 6 Whart. 181, and repeated in Jones v. Tracy, 75 Pa. 417, that “ no provision is made in the act of assembly as to the nature of the judgment which the plaintiff is to have against the garnishee where the garnishee makes default in appearance after service of the scire facias.” It might have been said more broadly that the statute makes no provision in express terms for any judgment at all on such default. Neither the act of 1705, 1 Smith’s Laws, 45, nor the act of 1789, 2 Sm. 502, appears to contemplate a judgment at that stage of the proceeding against the garnishee. Nor does the revised act of June 13, 1836, make any direct provision therefor. Hence it is argued by appellant that there can be no such judgment. But the act of 1836, § 45, directs that every writ of attachment shall contain
The plaintiff therefore was entitled to a judgment for want of an appearance against the garnishee, but it was not by virtue of any special provision, but only in accordance with the general practice in cases of such default. By such, practice judgment is only interlocutory, and plaintiff must go on and prove his demand before he can liquidate it. The question therefore arises what is the nature of his demand against the garnishee, and what is the judgment appropriate to the case ?
Foreign attachment is a proceeding in rem, by attachment of a non-resident’s goods, with the primary object of compelling an appearance to answer the plaintiff’s suit. In the custom of London where it originated, and in our early act of 1705 it is almost exclusively a proceeding in rem. The act of 1789 reciting that the previous law was defective from want of adequate provision for a disclosure of the goods etc. of the defendant in the hands of the garnishee, added the remedy of interrogatories in the nature of a bill of discovery, and answers by the garnishee, trial and judgment for or against him. The garnishee thus becomes as already said a party to the suit, but pro tanto only. It is none of his quarrel and he is brought into it only because of his possession of defendant’s goods. That therefore is the extent of his liability. If he produces them he is answerable for nothing more. When the act of 1836 added the clause of summons to the garnishee it did so in aid of the remedy, but not more for the plaintiff than for the garnishee himself. By sect. 54, after judgment against the defendant, plaintiff may have a writ of scire facias to the garnishee to show cause why the former should not have execution out of the goods of the defendant, etc. By sect. 55, the interrogatories are as to what goods etc. of defendant are in garnishee’s hands. Bv sect. 58, if issue and trial be had the jury are to find what goods or effects, if any, of defendant were in garnishee’s hands. And whether on confession in the answers or by sect. 59, on verdict, the execution is to be levied of the goods of defendant
I have quoted these cases to show the strictness required to make the garnishee answerable even for the defendant’s goods or their value. There are two exceptional cases, and only two, in which he becomes responsible de bonis propriis as for his own debt. These are first under sect. 57 when, after due service of interrogatories and a rule to answer, he neglects or refuses to do so, he may be adjudged to have in his possession goods and effects sufficient to answer the claim of plaintiff, and secondly under sect. 60 if after judgment against him on scire facias, he neglects or refuses to produce the defendant’s goods so adjudged to be in his hands. These two exceptions, however, even more than the general rule already discussed, .are strictissimi juris, and are not allowed except in the precise case stipulated by the statute nor even then unless every requirement be exactly fulfilled. Thus in Ringwalt v. Brindle, 59 Pa. 51, it was held that filing and serving a copy of the interrogatories on the garnishee would not entitle the plaintiff to judgment under sect. 57 although the rules of court provided ■that such judgment should be entered in default of answers.
The judgment in the present case was entered in default of appearance for the amount of plaintiff’s judgment against the defendant Hartwell, as if under section 57 of the act of 1836. It was not within the provisions of that section, and has nothing in the act to support it. It was wholly irregular and should-have been stricken off.
There remain to be noticed two cases which are relied upon by appellee as sustaining the judgment.
In Layman v. Beam, 6 Whart. 181, the garnishee having failed to appear after service of the summons, judgment by default was entered against him “ to be levied of his goods ” etc. This was held to be erroneous, and the proper form of the judgment was given, “'that plaintiff have execution of so much of the debt due by C. (garnishee) to A. (defendant) and attached in the hands of said C. as majr satisfy the judgment of' plaintiff against the said A.” etc. and if said C. refuse or neglect to pay the same, then to be levied of his own goods, etc. This form of judgment, and some expressions in the opinion, such as “ a default to appear is tantamount to a confession that he (garnishee) has in hands the property attached,” etc., entirely correct as to the facts then before the court, have sometimes unfortunately been taken as general rules applicable to all cases, and the forms based on them need revision. The-sheriff had returned “ attached a debt of about six hundred dollars due to defendant by the within named ” garnishee, and the plaintiff’s judgment against defendant was only two hun
The other case, Jones v. Tracy, 75 Pa. 417, is very similar in character. It is not so well reported, as some of the facts upon which the court proceeded appear only by inference. It also was an attachment of a debt due by garnishee, but neither its amount nor that of plaintiff’s judgment appears except that it may be gathered inferentially from the opinion that the judgment was for the amount of plaintiff’s claim, and that garnishee’s debt to defendant was larger. It is thus on all fours with Layman v. Beam, and is an exceptional case for the same
The result of all our cases may be summed up in the following propositions:
1. The garnishee failing to appear after service of the attachment, with clause of summons, but no specific attachment of goods or credits, plaintiff will be entitled to a judgment by default. But such judgment will be interlocutory only, and plaintiff' cannot liquidate it, or have execution, without first by writ of inquiry or before the prothonotary as the rules of court or the practice in cases of default may prescribe, establishing-his claim by evidence of the garnishee’s possession of goods or credits of the defendant; and the measure of his damages will be the value of such goods. This is the present case.
2. If the attachment is levied upon specific goods, the default may be taken as an admission of the possession of such goods, but the plaintiff must, by writ of appraisement or otherwise,, establish their value.
3. If the attachment is of money, or a debt, and the amount appears in the sheriff’s return the default is an admission of all the requisite facts, and no further evidence or inquiry is necessary. This is Layman v. Beam.
4. The proper form of the judgment is for plaintiff against the garnishee, and that the garnishee has in his hands certain goods, effects or credits, to wit, (naming them) of the value,, etc., or that the garnishee is indebted to the defendant in the sum of, etc.
5. Plaintiff’s measure of damages, which determines the amount of the judgment against the garnishee, is the value of the goods attached, of course not exceeding the amount of his
Judgment reversed and procedendo awarded.