People's National Bank v. Kern

193 Pa. 59 | Pa. | 1899

Opinion by

Mr. Justice Pell,

We see no reason for disturbing the decree entered in the common pleas, dismissing the plaintiff’s bill. As originally filed, the bill was for discovery in aid of an execution. As afterward amended, it took the form of a creditor’s bill, and seems to have been proceeded with as such. As a bill for discovery for the purpose of obtaining evidence, and in aid of a legal right, it did not draw the whole case into equity. The jurisdiction was for discovery only, and ended with it. As a scire facias provided for by the act of June 16,1836, was not issued, a lien was not acquired as against other attachments: Bennett’s Appeal, 22 Pa. 476.

Considered as a creditor’s bill it cannot be sustained. The plaintiff has a full and adequate remedy at law under the ordinary and long established methods of procedure. It can levy on and sell the real estate as the property of the defendant in the judgment, purchase it if necessary for the protection of its interest, and bring ejectment. The attachment execution which it caused to be issued makes the garnishees, who are defendants in the bill, liable to account for all the property of the defendants in the judgment which is in their hands, and for debts due them. The act of 1836 provides a method by which their rights may be further and more fully secured. The decision in Girard National Bank’s Appeal, 13 W. N. C. 101, cited in the opinion of the learned judge of the common pleas, is conclusive of this question. Fowler’s Appeal, 87 Pa. 449, Houseman v. Grossman, 177 Pa. 453, and People’s Nat. Bank of Pitts. v. Loeffert, 184 Pa. 164, are cases in which the ordinary remedy at law would have been ineffectual, and they do not affect the established rule.

The contention that any objection to the jurisdiction of the court to entertain the bill should have been raised by demurrer or answer, and that it comes too late after the report of the master, is without merit. The bill as filed was for discovery, and it was framed in the words of the act of 1836. It presented no ground for objection to the jurisdiction of the court, and it was not until after answer and after the testimony had all been taken that the intention to treat the bill as a creditor’s bill was disclosed.

The decree is affirmed at the cost of the appellant.