272 Pa. 468 | Pa. | 1922
Opinion by
In this case, a motion was made to quash a writ of foreign attachment, on the ground that the indebtedness alleged by plaintiff had been effectually adjudicated against him in a suit between the same parties previously determined by another court of Allegheny County; the motion was overruled and defendant has appealed.
In 1918, defendant sold and delivered to plaintiff 4,865 boxes of macaroni, for $8,931.75; plaintiff paid $7,647.85, leaving a balance of $1,283.90; on April 7, 1919, the present defendant sued the present plaintiff, in the County Court of Allegheny County, to recover the balance due. Defendant’s history of the case, on this appeal, states that plaintiff, as defendant in the former action, there filed an affidavit of defense, alleging that, by agreement between the parties, certain of the macaroni had been returned because unmerchantable, and that such return extinguished and satisfied the debt then in suit; but, as is later pointed out in this opinion, the pleadings in the county court have not been properly brought before us, so we cannot go into the details of that defense,- — it is enough to say the case resulted in a judgment for the then plaintiff. On July 28, 1920, the present action of foreign attachment in assumpsit was instituted against the plaintiff in the judgment in the
The foregoing statement of facts is taken from defendant’s paper-book; plaintiff agrees to it, except that he says, (1) the damages claimed in the case at bar “relate only to 4,171 boxes of macaroni, excluding the 694 boxes which were the subject of the [former] litigation”; and (2), that, owing to the provisions of section 5 of the Act of April 2, 1913, P. L. 21, 28, limiting the jurisdiction of the county court to $1,500, that tribunal could not have adjudged the instant claim, as a set-off, had he attempted to present it: see, on the last point, Barker v. Remov, 69 Pa. Superior Ct. 138, 142, and Holden v. Wiggins, 3 P. & W. 469.
We shall not now discuss the points made by plaintiff as to the prior litigation between him and defendant, nor the latter’s answering positions, since we deem that course unnecessary to a proper decision of the governing question before us on this appeal, which is, simply: Upon the record brought here, does it appear the court below erred in refusing to quash the writ of foreign attachment?
The question just stated must be disposed of on the record before us without treating any of the matters mentioned in the last two paragraphs as controlling factors, as will be shown during the course of this opinion; but it is necessary to an understanding of the case that we refer to them, and later, when returning to the facts here involved, perhaps to pass on at least one
The plaintiff, in a proceeding of the nature of the case at bar, may attach money in his own hands belonging to the defendant (Hurt v. Fuller Canneries Co., 263 Pa. 238, 240, 243); but, if for any sufficient reason the attachment is shown to be void in law, it will be quashed.
At one time it was held that the power to quash writs was confined to cases where the record disclosed the proceedings to be clearly irregular and void (Crawford v. Stewart, 38 Pa. 34, 36; Steel v. Goodwin, 113 Pa. 288, 292); subsequently, in certain exceptional instances (which we shall notice later), evidence dehors the record was received to prove grounds for quashing writs. The general rule still is, however, that writs will not be quashed unless some fundamental irregularity appears in the record itself, and cases where this principle has been departed from will be found to present unusual features, which distinguish them from the rule as stated.
There are numerous cases where, on appeal, the courts have reversed orders, quashing writs of foreign attachments or dissolving the attachments, and others where they have sustained refusals to grant such relief; among these the following are instructive: Pleasants v. Cowden, 7 W. & S. 379; Lindsley v. Malone, 23 Pa. 24; Crawford v. Stewart, 38 Pa. 34; Murdock v. Steiner, 45 Pa. 349; Lorenz v. Orlady, 87 Pa. 226; Steel v. Goodwin, 113 Pa. 288; First Nat. Bk. v. Crosby, 179 Pa. 63; Seanor v. Fitt (No. 2), 263 Pa. 391; Pottash v. Harten
Cases where the appellate courts have affirmed the quashing of writs of attachment, so far as they have been called to our attention, or our research has disclosed, are not many; and the instances where such quashing was done on evidence dehors the record are so exceptional that they may be noticed with profit.
In Downing v. Phillips, 4 Yeates 274, the defendant produced the record of the court of another state, showing a judgment against him in favor of the plaintiff, involving a prior adjudication of the debt sued for in the attachment proceedings; also disclosing that execution had issued on this foreign judgment and the defendant had, on entering security, been granted an injunction to restrain such execution. Upon these facts, this court, sitting at nisi prius, quashed the writ of attachment, saying that “to entertain suit would be a race for jurisdiction highly unbecoming the relative character of the individual states of the union toward each other”; but, so far as the scanty report of the case makes it known, the real point of controversy between the parties seems to have been a contention by the appellant that the chancellor of the foreign jurisdiction should not have stayed execution, because “no equity appeared in the bill” exhibited there; which matter, this court, of course, declined to pass upon. The right to the summary relief sought, — the quashing of the writ, — was neither questioned nor discussed.
Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, (opinion by President Judge Rice) is an instance where an effort was made to attach property of a married woman, to satisfy a judgment debt of her husband. In other words, it was a case where an injunction could properly have issued to restrain an execution creditor from selling the property attached (Hunter’s App., 40 Pa. 194), and the quashing of the writ would be explainable on that
In Pasquinelli v. Gross, 74 Pa. Superior Ct. 296, 298, where a rule to “quash or dissolve” an attachment was made absolute, and affirmed on appeal, there was an admission of record by the appellant that his cause of action had already been determined against him in a prior proceeding; and this fact sufficiently explains that case.
In Brown v. Ridgway, 10 Pa. 42, there is some confusion as to whether the application was to dissolve the attachment or to quash the writ; however that may be, the order granting the relief prayed for was affirmed simply because, under the limited review then allowed, there was nothing on the record to show an abuse of discretion; this is true also of Holland v. White, 120 Pa. 228, and Shueck v. Freeman, 55 Pa. Superior Ct. 38, where the applications granted and affirmed were to quash writs.
Probably there are other cases, unmentioned here, where writs were quashed; but we think research will disclose that, wherever this was done on evidence dehors the record, and afterwards affirmed, either the appropriateness of the remedy was not questioned on appeal, or, if that point was considered, the relief granted is explainable on some such exceptional grounds as indicated in the cases above reviewed where the fatal defects did not appear on the face of the record.
The Pennsylvania authorities, down to certain recent cases, to which we shall refer directly, held consistently that the determination of an application either to quash the writ or to dissolve an attachment was not reviewable, because it was a matter within the discretion of the court below, and, since no bill of exceptions lay to bring the evidence relating thereto upon the record, the practical effect of this was that such discretion could not be
The Act of April 26,1917, P. L. 102, expressly allows “appeals from orders of court entered on motions to quash or dissolve writs of foreign attachment,” and provides that “the evidence on which the case was heard and disposed of in the court below, together with the opinion of the court thereon, shall constitute a part of the record”; further, that the appellate court shall consider the evidence and opinion brought before it and “dispose of the case according as the law and the facts shall be found therefrom”: see also the general Act of April 18, 1919, P. L. 72, making the testimony part of the record in all appellate proceedings. Under this legislation, we examine the proofs to see whether there is any evidence to warrant the findings of the trial court, or to sustain the action complained- of (Hand’s Case, 266 Pa. 277, 281); but, in making such examination, the prevailing presumption “that everything was done rightly and according to law” (Brown v. Ridgway, 10 Pa. 42, 43) still holds and, since the Act of 1917 allows an appeal (like the one before us) from the refusal to quash a writ, which is an interlocutory order, the usual rule governing appeals from such orders applies, and the record must present plainly a clear abuse of discre-. tion, before a reversal can be had. It is also established that, where a writ is quashed, the record showing such action must be “self-sustaining”: Seanor v. Fitt (No. 2), 263 Pa. 391, 393.
There is no little confusion among the Pennsylvania authorities as to the distinction between a motion to quash a writ of foreign attachment and one to dissolve the attachment. While President Judge Rice, in Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, 193, points to this
An applicant to quash a writ may not aver simply a defense on the merits, or a good legal answer to the alleged debt itself, he must point to some defect in the record which renders the proceeding fundamentally irregular and void (Crawford v. Stewart, 38 Pa. 34, 36; Steel v. Goodwin, 113 Pa. 288, 292), or if (as in exceptional instances is allowed) evidence dehors the record is produced to establish defects therein, the defects depended on must be of a character to put plaintiff
To return to the facts in hand, plaintiff’s affidavit of cause of action, — after averring the macaroni in controversy, instead of being up to the alleged warranty of quality, had proved “worthless for human consumption as food,” and that he had therefore been “compelled to, and did, dispose of said merchandise as feed for chickens,” realizing $2,260.95, — states that he arrived at his loss, which constitutes the present claim, by deducting the amount received by him from $7,647.85, the sum he had previously paid defendant.
The measure of damage for breach of warranty as to quality of personal property, is well established; the purchaser is entitled to the difference between the value of the goods as warranted and their value in the condition complained of (Sedgwick on Damages, 290, and Pennsylvania cases cited in Reynolds v. Ramsey, 56 Pa. Superior Ct. 97, 100), the value contemplated being
In view of the guiding principles already stated, we cannot hold, — as defendant contends, — it is evident from plaintiff’s affidavit of cause of action that, in fixing his damages at more than $1,500, he adopted a wrong and purely arbitrary measure, and therefore had not shown his claim to be beyond the jurisdiction of the county court; but, even if it did appear that plaintiff had a wrong measure of damages in mind, that contention is put forth for the first time on this appeal, so far as the record before us indicates. Defendant’s petition to quash the writ of attachment makes no mention of the amounts claimed by plaintiff; had it done so, and were plaintiff’s measure of damages wrong, the court below might have allowed an amendment (Hurt v. Fuller Canneries Co., 263 Pa. 238, 241, 242), and the record might have come before us in different form. This calls for application of the rule that, points “not raised in the lower court will not be considered on appeal” (Hurt v. Fuller, 263 Pa. 238, 241), and, heeding that rule, we cannot pass on the contention under discussion.
While each of the various rules hereinbefore noted has its place in the case, those that really govern our decision, in the last analysis, are these: (1) Where a court quashes a writ, it is required that the record,
Of course, in passing on a plea of res adjudicata, “recourse must be had to the pleadings” in the respective actions (Jackson v. Thompson, 215 Pa. 209, 212), to see if the issues in the one are the same as in the other, and to decide as to their comprehensiveness, the judgment in the first action being inconclusive of matters neither up for determination in that case (Jackson v. Thompson, supra, 214) nor material to issues necessarily involved in, or inseparable from, those then before the court (Reading Co. v. Spink, 263 Pa. 445), even though
The case before us certainly requires a view of the entire record of the county court, to determine whether or not the matters comprehended by plaintiff’s present claims were in any way adjudicated or affected by the proceedings in that tribunal; for all we know, there may have been admissions, or something tantamount to admissions, on that record, which controlled the verdict and judgment there entered. The defendant in that case (plaintiff here) may have admitted that the defense there set up (which he now asserts as absolutely independent of his present claim for damages) was the only one he had against the indebtedness then in suit; or the full record of that case may show that the defendant there (plaintiff here) treated facts which enter into his present claim in such a way as to constitute a severance of what he here calls an entire amount, and asserts to be, in law, nonseverable, and that parts of such claim were in fact severed and passed upon. (For a discussion of severable and nonseverable claims, see Carvill v. Garrigues, 5 Pa. 152, 153; also Holden v. Wiggins, 3 P. & W. 469, 474.) Of course, we cannot assume any
The assignments of error, which go to the points determined, are overruled; the others are dismissed as immaterial.
The order appealed from is affirmed.
