Seanor v. Fitt

263 Pa. 391 | Pa. | 1919

Opinion by

Mr. Justice Simpson,

Plaintiff issued a writ of foreign attachment and summoned five garnishees, viz: himself, three other individuals and John P. Kilgore, the sheriff of the county. Defendant moved to quash the writ as to all the garnishees, none of whom joined in the motion, without averring any reason therefor, but evidently upon the ground that money in the hands of a sheriff is in custodia legis, and not the subject of an attachmént. The attachment was quashed expressly upon that ground, and plaintiff appeals.

The court below should have refused to entertain the motion to quash until and unless defendant stated of record his reasons for asking the intervention of the court. The record was regular on its face; and the attachment, so far as appears, was properly issued. No affidavit of cause of action was asked for or filed, and no depositions were taken. Under such circumstances it was an abuse of discretion (if it was the exercise of a discretion) to quash the writ, for its effect, if sustained, would be to deprive plaintiff of an opportunity to have the action of the court below reviewed on a matter of law, as of right he should have: Grieb v. Kuttner, 135 Pa. 281. In all cases of quashing writs, or otherwise interfering with a litigant’s statutory rights, the record should be self-sustaining, and show why the court is asked to act.

The order of the court below quashing the writ of foreign attachment is reversed, and a procedendo awarded.