Harbert v. Gormley

Mr. Justice Paxson delivered the opinion of the court January 24th, 1887. This was an attachment under the Act of 1869. The affidavit was filed and writ issued February 11,1885. On February 14, a rule was granted to dissolve the attachment, which was made absolute on March 6th, 1885, The defendant in the attachment issued a scire facias upon the bond on March 16th, 1885, and before the final determination of the action. The court below entered a nonsuit upon the ground that the suit was commenced prematurely. This writ of error was brought to test the correctness of that ruling. The precise point has not been decided by this court. In Gunnis v. Cluff, 111 Pa. St., the attachment was dissolved, and the cause proceeded to final judgment as in the case of a summons. Upon the trial below, the defendant attempted to set off the damages lie sustained by reason of the attachment. The court held that he could not do this, and when the case was brought here upon a writ of error we sustained its ruling.1 That case was decided upon the single ground that the damages arose subsequently to the commencement of the action, it being settled law that a cause of action incomplete at the impetration of the writ is not available as a set-off. In the course of the opinion it was said by our brother Sterrett : “There can be no breach of the bond and consequent right of action until the attachment is dissolved by the court, or fails by reason of plaintiff’s inability to sustain his claim.” It was claimed that this rules the question we are considering. A glance at that case however will at once show that no such [240] point was before the court, and the attention of Justice Sterrett was not called to the language of the condition of the bond. Indeed, the form of the bond did not appear in that case. In the case in hand it was as follows : “Now the condition of this obligation is such, that if the said plaintiff shall fail to prosecute the action commenced by said attachment with effect, and recover a judgment against the said defendant, and shall pay to the said defendant all legal costs and damages which the said defendant may sustain by reason of the said attachment, then the foregoing obligation'is to be void, otherwise the same shall remain in full force and virtue.” There is no ambiguity in this language. It does not say “ if the plaintiff shall fail to prosecute his attachment with effect,” but that if he “ shall fail to prosecute the action commenced by said attachment.” The word “ action ” in this act cannot be held to be synonymous with “ attachment,” as by its provisions the “action” shall proceed though the “attachment” be dissolved, provided the defendant has been served with the writ. The proceeding itself is of a hybrid character. It differs little from an ordinary summons except that it has a clause of attachment engrafted 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 obtained against him. And attention is called to the fact that the goods of any debtor, however honorable, may be attached in this manner where a malicious creditor will take the risk of making a false or a rash affidavit. In this way incalculable injury may be done to the good name of an honest man, and if the bond provides no adequate remedy it is a matter which requires the prompt and serious attention of the legislature. We are clear that the condition of the bond is "not broken by the mere dissolution of the attachment, and if in the action the plaintiff recover a judgment against the defendant, it is more than doubtful whether the latter has any remedy for the attachment, however vexatious and wrongful it may "have been. It may be the legislature intended to give a remedy upon the bond as soon as the attachment is dissolved.. They did not say so, however, and we cannot say so for them in the absence of any language which discloses such an intent. Our province is to construe the Act, not to amend it. We have disposed of this case promptly, to enable the legislature, which is now in session, to take such action in the matter as its wisdom may suggest. We are of opinion that the learned judge below was right in holding that the action was prematurely brought. It follows [241] that he committed no error in directing a judgment of non-suit. Judgment affirmed. Mercur, C. J. dissented.