Smyth v. Miller

Opinion by Mr. Chief Justice Stebbett, If the affidavit of defense, when filed, was sufficient to carry [641] the case to a jury and thus prevent a summary judgment against defendant, nothing that occurred afterwards could render it ineffectual for that purpose.’ It is a mistake to suppose that the act of the court discharging the rule to dissolve the attachment could in any way impair the efficacy of the affidavit of defense. The attachment is merely part of the process to secure the alleged fraudulently contracted debt in advance of obtaining judgment for the amount thereof; and, whether the attachment was dissolved or not, it was incumbent on the plaintiffs to establish their claim against the defendant. If they fail to obtain judgment against him, the attachment of course becomes inoperative. Assuming — as we must until the contrary is established either by the verdict of a jury or defendant’s own admission — that the facts averred in his affidavit are true, they clearly constitute a defense to plaintiffs’ claim as presented in their statement. In substance, the material averments are that the several purchases of goods for recovery of the price of which this suit was brought were made on credits of sixty days each, etc., and that, so far as the goods were not paid for, the, term of credit of neither purchase had expired when suit was brought. Affidavits procured by plaintiffs and used in opposition to the rule to dissolve the attachment could not be resorted to for the purpose of disproving or nullifying the averments that neither of the items of plaintiffs’ claim was due and payable when suit was brought. On that question of fact defendant was entitled to a trial by jury. It also appears that more than a year before the rule for judgment was taken, the defendant, in obedience to plaintiffs’ rule on him, filed his plea, and the cause was substantially at issue: O’Neal v. Rupp, 22 Pa. 395. But, assuming that the rule for judgment was taken in time, we are clearly of opinion that the learned court erred in holding that the affidavit of defense is insufficient. Judgment reversed and a procedendo awarded.