162 Pa. 72 | Pa. | 1894
Opinion by
The only practical question at issue here is, whether the plaintiff is entitled to judgment for want of a sufficient affidavit of defence. It is claimed in the affidavit filed that the action is commenced by a foreign attachment and no affidavit of defence is required, and that an action of foreign attachment cannot be sustained because both parties are residents of the state of New York,where an assignment for benefit of creditors was made before the attachment was issued. To this it is replied that a general appearance was entered for the defendant on March 2, 1893, and thereupon counsel for defendants took various steps by way of defence, and it is contended that after such appearance the case became an ordinary action of assumpsit, to be proceeded with as if commenced by a summons.
The action is assumpsit under our new procedure act, and is founded upon a judgment recovered in New York by the plaintiff against the defendant. By the 64th section of the act of 13th June, 1836, Purd. 828, pi. 584, it is provided that, “ It shall be lawful for any defendant in an attachment, instead of giving bail or security, at his election, at any time before judgment obtained in the attachment, to cause an appearance to be entered for him and to take defence to the action, in which case the action shall proceed as if commenced by a summons.” In Memphis etc. R. R. Co. v. Wilcox, 48 Pa. 161, we held that it was too late to question the regularity of a foreign attachment after appearing and pleading to the action. Said Thompson, J., referring to the reserved points: “ The first is, will foreign attachment in covenant lie ? We need not answer that question; for the defendant having appeared and pleaded to the action, after that it was to be proceeded in as if commenced by summons: Act of 1836, section 64; 2 T. & H. Pr. 685, 686. After appearing and pleading, they cannot contest the regularity of the attachment.”
To the same effect is Blyler v. Kline, 64 Pa. 130. As a matter of course in an action upon a foreign judgment, an affidavit of defence is required to prevent judgment, and as this action after appearance entered and defence made is to proceed as if commenced by a summons, there can be no question as to tbe right of the plaintiff to take judgment if no affidavit of defence is filed.
It must certainly be conceded that when the plaintiff and defendant both reside in another state, and the defendant has there made a deed of assignment for the benefit of creditors, which has been duly recorded, or of which- the plaintiff had notice, he cannot afterwards bring foreign attachment in our state, and thus obtain a preference over the general creditors in the state of the residence of both the parties: Bacon v. Horne, 123 Pa. 452, and cases there cited. But that is a matter which affects the regularity of the attachment and is cured by a general appearance and defence made.
It would seem therefore that no preference can be obtained by means of the attachment and subsequent proceedings, because, as to such nonresident attaching creditor, the title to the property situated in this state passed by the assignment: Bacon v. Horn, supra; Long v. Girdwood, 150 Pa. 413. These considerations dispose of this case. The affidavit did not disclose any defence on the merits, and therefore the plaintiff was entitled to judgment. But his judgment will not give him any priority of lien on the property attached because the title had already passed to the assignee in New York.
Judgment affirmed.
