Bryan v. Trout

Mr. Justice Paxson delivered the opinion of the court, 9. The mode of serving the writ of foreign attachment is prescribed by the Act of 13th June 1836, Pamph. L. '580, Purd. Dig. 718. Where real estate is attached it is as follows: “ It shall be the duty of the sheriff to leave a copy of the writ with the tenant, or other person in actual possession, holding under the defendant in the attachment, and to summon him as garnishee.” The act further provides, that if there be no person in actual possession, service shall be made by publication. In this case, the sheriff made return that he attached the real estate described in the writ, by serving it “on Thomas A. Trout, garnishee,” and nihil as to the defendant. That this return was insufficient, is settled- by Hayes v. Gillespie, 11 Casey 155. It was there held that the return must conform to the Act of Assembly, and that where the writ is served on a tenant, or other person holding under the defendant, the fact that the tenant does so hold must appear by the return. See also Lambert v. Challis, cited in note to Hayes v. Gillespie, where the same point was decided by the present chief justice when president judge of the District Court of Philadelphia. To the same point is Sterrett v. Howarth, 26 P. F. Smith 438. It follows that neither the person of the defendant, .nor his pro [494] perty. was before the court by the return of the sheriff, and the entry of judgment against him for want of an appearance was-erroneous. . Judgment reversed. ,