59 Pa. 51 | Pa. | 1868
The opinion of the court was delivered, May 27th 1868, by
None of the assignments of error first made can be considered. They all relate to the refusal of the court below to open a judgment, which is not assignable for error, or to the opinion of the judge justifying such refusal, and that opinion is no part of the record. But at the argument we allowed the plaintiff in error to file another assignment, averring that the judgment against the garnishee was irregularly entered, and this is all that is before us.
The judgment against the debtor was obtained on the 5th of January 1867, upon which an attachment execution issued immediately. It was served on Ringwalt, the garnishee, on the 7th of January, and on the 30th of April next following, interrogatories were filed and served, to which no answers were exhibited or made. On the 22d of May judgment was entered against the garnishee for want of an answer. It is now objected that this judgment was erroneous, because first, the interrogatories were not filed until after they had been served on the garnishees; secondly, because they were not served by the sheriff or any officer of the court; and thirdly, because no rule upon the garnishee to appear and answer was taken.
The Act of 1836, relative to execution attachments of debts or deposits, &c., directs that such property of the debtor may be attached and levied in satisfaction of the judgment in the manner allowed in the case of a foreign attachment, providing, however, a clause of scire facias against the persons owing the debt to the judgment-debtor, or holding the deposit. After the service of the attachment and the scire facias, the garnishee is placed in the position of a garnishee in foreign attachment, who has been served with a scire facias after judgment. The Act of Assembly of June 13th 1836 prescribes the manner of proceeding against a garnishee in foreign attachment, after he has been served with a scire facias. The 55th section enacts that it shall be lawful for the plaintiff to exhibit in writing to every garnishee as aforesaid all such interrogatories as he may deem necessary, touching the estate or effects of the defendant in his possession or charge, or due and owing from him, as the case may be, to the defendant, at the time of the service of such writ, or at any other time, and
Now assuming that the procedure in attachment executions must be the same as in foreign attachments, which we are required to assume, it may be observed that the law does not require that the interrogatories shall be exhibited to the garnishee by the sheriff or other officer of the court. It empowers the plaintiff to exhibit them. Nor does it require that they shall be filed anterior to the day on which they are thus exhibited or served. It is indeed necessary that they be filed before a rule to answer is granted, or contemporaneously therewith, but both as well as service may be on the same day. In this case the interrogatories were filed on the day on which they were served on Ringwalt, and there is therefore nothing upon the record to show that in this particular there was any irregularity. But there was no rule granted upon the garnishee to answer the interrogatories filed, and there was therefore no disobedience of a rule which justified the judgment. The Act of Assembly authorizes judgment for neglect or refusal to answer interrogatories only after rule granted. The court is to determine whether the interrogatories are pertinent and proper; and are to prescribe in the rule the time and place of answering. The judgment for default of answer is not according to the course of the common law, and it can therefore be given only when authorized by the statute. A garnishee is not in contempt who disobeys no rule. We have been referred to the standing rules of the court respecting execution attachments which authorize a plaintiff to file his interrogatories with his precipe, or at any time after the return-day if the writ be served, and declare that at any time after they have been served upon the garnishee ten days, judgment may be entered. But these standing rules are not the rule upon the garnishee to answer, which the Act of Assembly contemplates ; and even these were not served upon the garnishee in this case. He had therefore no notice of any order of the court that he should answer. The words of the statute, that the rule may be granted, on motion of the plaintiff, to answer such interrogatories as the court shall deom pertinent and proper, indicate clearly that more than a standing rule of court is required.
Judgment against the garnishee reversed, and a procedendo awarded.
