Rothermel v. Marr

Mr. Justice Trunket delivered the opinion of the court This is an action of trespass against a sheriff for taking the plaintiff’s goods. The defendant, plaintiff in error, pleaded not guilty to the declaration, and the issue thus made was tried and all the questions involved were considered. Respecting the special pica it is enough to say, that -if good in form it was bad in substance, and had it been demurred to the plaintiff would have been entitled to judgment. It is insisted upon by the defendant that the controlling question now presented is, whether the sheriff in executing an attachment under the Act of March 17th 1869, relating to fraudulent debtors, issued against one person, may lawfully seize the goods of another. He contends that though it be true that he took the goods of Margaret H. Marr, the writ issued at the suit of Wain wright & Co. against A. P. Marr commanded and authorized such taking. Section 1 of the Act of 1869 makes it the duty of the prothonotary to issue an attachment against any defendant, upon the application of any plaintiff who makes and files the prescribed affidavit, and also a bond “ conditioned that if the plaintiff or plaintiffs shall fail to prosecute his, her or their action with effect, and recover a judgment against said defendant or defendants, he, she, or they shall pay to said defendant or defendants, all legal costs and damages which said party defendant may sustain by reason of said attachment.” Section é provides that if the writ be personally served on the defendant, or if he reside in the county, or if he “ shall appear to the action, the court shall proceed in the case in like manner as in case of summons for debt regularly issued and duly served;” and if there shall not be a personal service, residence or appearance as aforesaid, the plaintiff, after the first day of the second term, may proceed in like manner against the defendant and garnishees as is practiced in cases of foreign attachment and execution attachment. It is obvious that the issuing of an attachment under said act is the commencement of a suit; that when the defendant is a resident of the county, or is personally served with the process, or appears, the action is proceeded in as if commenced by summons, and the judgment is personal and final between the parties as to the subject of the action. In case of service or appearance, even the dissolving of the attachment upon the defendant’s application, as provided in section 6, merely discharges the lien and. releases the goods from the custody of the law; and the action is proceeded in. When there is no service or appearance, and the defendant is a non-resident of the county, the [291] judgment is in rem, as it is in foreign attachment when the defendant does not appear. Sections 2 and 3 direct the manner of executing the attachment, and provide that when the property attached is in the hands or possession of a person other than the defendant, such person shall bo summoned as garnishee. It is the duty of the officer to take the property attached into his possession where it is capable of manual seizure, and when not, the same shall be bound by the attachment in the hands of such party from whom it is due or owing, or whose duty it is to account for the same, unless the defendant or some one for him shall enter into a bond as the act prescribes. It is plain that the officer is not authorized to attach the property of any person other than the defendant. No one is to be summoned as garnishee, unless he owes the defendant or holds and is liable to account to him for goods or other property. The fact that the officer summons a person as garnishee is no excuse for taking his goods. A garnishee is not a defendant. It is neither directed nor contemplated in the statute that a garnishee’s goods may be seized. The defendant urges that the bond tiled before the issuing of the attachment is for security of the garnishees whose goods may be taken. -But this is contrary to the letter and spirit of the statute. The bond is conditioned for payment of costs and damages to the defendant, if the plaintiff fails to recover a judgment. In the action relied on as a bar to this suit, Wainwright & Co. gave bond to A. P. Marr, with condition that if they failed to prosecute their action with effect and recover judgment against A. P. Marr, they shall and will pay to said Á. P. Marr all legal costs and damages which he may sustain by reason of the attachment. That bond is no security for anybody except A. P. Marr. It is in strict accord with the statute which intends it shall be a security for the defendant in the attachment. When the plaintiff directs the seizure of goods claimed by a person other than the defendant, the sheriff hnay demand a bond of indemnity, and, if the plaintiff neglect, to give it, may refuse to take such goods. This right of tile sheriff to be secured in such cases is at common law: Shriver v. Harbaugh, 1 Wright 399. He may release the goods of a third person if such bond be refused. Or he may have an order upon the plaintiff and the claimant of the goods for inter-pleader : Act of January 30th 1871, P. L. 12. There is no rule of law which compels the real owner of attached property, on notice of the suit, to intervene and defend pro inter esse suo, on pain of forfeiting his right of property or of action : Megee v. Beirne, 3 Wright 50. unless he be called on to make good his [292] claim, by virtue of the statutes relating to interpleader, he may sue the officer and recover damages. The learned judge of the Common Pleas was entirely right in ruling that the writ of attachment in the suit by Wainwright & Oo. against A. P. Marr was no authority for seizure of the plaintiff’s goods, and that said suit, whether pending or determined, was no bar to her recovery. It mattered not whether that action was tried, or, if tried, which party obtained judgment. Margaret H. Marr was not a party in that action. The original writ was as little authority for taking her goods as, after judgment, an execution would be. At the trial the real' question of fact in controversy was, whether the plaintiff owned the goods as against creditors of A. P. Marr. This was clearly apprehended by the court, and the instructions to the jury relating thereto need no vindication. If the sale to her by A. P. Marr was void as respects his creditors, she could not recover; but if valid, the evidence on part of the defendant conclusively showed that he was a trespasser in seizing the goods. He seized' them as the property of A. P. Marr, the order of sale followed that seizure, and is no defence against this action. The evidence was ample that the plaintiff bought the goods of A. P. Marr, took and held possession, and was^entitled as owner against all the world. It was rightly submitted, and, if believed, warranted the verdict in favor of the plaintiff, for the value of the property. We have considered and endeavored to express our opinion upon the few points raised by the numerous and voluminous assignments of error. The instructions and rulings were quite as favorable to the defendant as he had a right to demand. Judgment affirmed.