Sharpless v. Ziegler

92 Pa. 467 | Pa. | 1880

Mr. Justice Gordon

delivered the opinion of the court, February 9th 1880,

By the first section of the Act of March 17th 1869, it is made the duty of the prothonotary to issue a writ of attachment upon the filing, by the plaintiff, of the affidavit in said act prescribed. This attachment is in the nature of an original writ, for not only may goods and chattels be attached by it, but in case of personal service, or in case the defendant resides in the county, “ the court shall proceed in the case in like manner as in the case of a summons for debt regularly issued and duly served.” When, therefore, the plaintiff has filed an affidavit in the language, or substantially in the language of the act, and has executed the required bond, this writ issues of right and not of grace. In this it differs widely from the Act of 1842, for in the first place, the application under that act is for a wai’rant of arrest; and in "the second place, this application must be made to a judge of the court, who, before he issues the warrant, must be satisfied of the truth and accuracy of the charges preferred. His acts and proceedings are judicial, and so a critical examination of the affidavits may be had, which is not possible before a mere executive officer. But even under the Act of 1842, it is sufficient that the affidavit sets forth a case of fraud in general terms ; it is enough, in the first instance, that it shows probable cause to the satisfaction of the judge : Gosline v. Place, 8 Casey 520; Berger v. Smull, 3 Wright 302. Surely, then, under the Act of 1869, it is a sufficient warrant to the prothonotary to issue the writ, if the affidavit, as in the case in hand follows the language of the statute. As he is not a judicial officer, this part of the act could not have been designed so much for the satisfaction of his mind as to the rectitude of the application, as to commit on oath, the applicant to the truth of his allegations, in order that he might thereafter be legally liable therefor.

That we thus give the true intention of the act, is the more obvious in that, the Court of Common Pleas, or a judge thereof, may, at any time after the attachment has issued, dissolve it on proper cause shown, whether that cause appear from the face of the original affidavit, or from evidence dehors that paper. But in such case, where there has been a service, or the defendant resides in the county, the suit proceeds to judgment as upon summons in ordinary cases. In the case in hand, however, the plaintiff was turned out of court by the quashing of his writ, and in this manner an end was put to his case, a result which was equivalent to a final judgment. This action of the court was erroneous, and for this cause the judgment is reversed and a procedendo is awarded.

Let a like judgment be entered in the case of Good v. Sharpless.