Walls v. Campbell, Nos. 399 and 400

Nos. 399 and 400 | Pa. | Apr 8, 1889

WALLS v. CAMPBELL.

Opinion,

Mr. Chibe Justice Paxson:

Tliis was an attachment’ under the act of 1869. A motion was made in the court below to dissolve the attachment which was refused, and the case went on to trial, with the result of a verdict against the defendant. There is but a single assignment of error, out of which the learned counsel for the plaintiffs in error have carved two questions, viz.: (a) “ Ought the court below to have instructed the verdict in view of the disputed facts, especially that the whole of plaintiffs’ claim had been paid by notes, one of which was not due at the time of suit brought? ” and (5) “ Is this question of fraud to be tried by the jury ? ” In regard to the first, it is sufficient to say that the case was tried below upon the theoiy that the entire contest was over the question whether the fraud could be tried before the jury. This appears not only from the charge of the learned judge, but also from the points submitted by the defendant, which referred to the question of fraud and to nothing else. The defendant when upon the stand distinctly admitted owing the money, and denied only the fraud upon which the attachment was granted. The court was not requested to charge in regard to the outstanding notes, and we must treat the case here as it was tried there.

We have no difficulty as to the other point. An attachment under the act of 18G9, as was observed in Harbert v. Gormley, 115 Pa. 287, “ is of a hybrid character. It differs little from an ordinary summons except that it has a clause of attachment en-grafted thereon, by means of which the creditor may, in certain cases, seize the property of a fraudulent debtor before he can dispose of it, and before a judgment is obtained against him.” If the attachment is dissolved by the court the suit still goes on; the plaintiff may recover his judgment against the defendant, but he has lost his grasp or lien on the particular property attached. If the attachment be not dissolved, and the creditor gets a judgment, he retains his lien and reaps the fruit of his attachment. In this case, as before observed, the court below refused to dissolve the attachment, and upon the trial the defendant claimed to try the question of fraud before the jury. This the court verjr properly refused to allow. Under the act of 1869 it is for the court to continue or dissolve the attachment. The jury have nothing to do with it. It is a statutory proceeding, and can be proceeded with only as provided by the statute. The position contended for by the defendant would make the jury the final judges of the propriety' of the attachment. If they can reverse the court and dissolve the attachment, we must concede that they can also restore the attachment by their verdict after it has been dissolved by the court. This brings us to the reductio ad absurdum.

Judgment affirmed.

WALLS v. BOTELER.

Per. Curiam :

This case is ruled by Walls v. Campbell, just decided.

Judgment affirmed.