Wherry ex rel. Rosensteel v. Wherry

Opinion by Mr. Justice McCollum, Ida B. Wherry, on the 10th day of July, 1883, obtained a judgment against T. T. Wherry, her husband, who died on the 26th of April, 1884, without having paid the judgment, or any part of it. Letters of administration upon his estate were issued to her, and J. W. Leach was appointed guardian of his minor children. On the 5th of January, 1889, Ida B. Wherry gave her note to D. L. Rosensteel for $318 on which he [87] entered a judgment against her. On the 4th of June, 1890, he obtained another judgment against her for $328.58, and on the same day he issued an attachment execution upon each judgment, and summoned Ida B. Wherry, administratrix of T. T. Wherry, deceased, as garnishee. In each attachment proceeding there was a verdict and judgment against the garnishee for the sum due the plaintiff on his judgment against the defendant, the execution issued thereon to be levied, etc., in accordance with the established procedure in such cases; Bonnafen v. Thompson, 83 Pa. 460, and Hartley v. White, 94 Pa. 31. The judgments against the garnishee were based upon the indebtedness of the estate to Ida B. Wherry on her judgment against the decedent. On the 8th of July, 1893, Rosensteel’s attorneys filed a praecipe for a sci. fa. on the last mentioned judgment, naming Ida B. Wherry, for use of D. L. Rosensteel, as plaintiff, and the administratrix and minor children of T. T. Wherry, deceased, as defendants. The sci. fa. was issued, and Ida B. Wherry, administratrix aforesaid, appeared in answer to it and alleged inter aha that the issuance of it was unwarranted. This presented we think the important and controlling question in the case. The court deeming the defense made as insufficient, instructed the jury that it was their duty to find for the plaintiff the sum of $1,908.99. They did as instructed, and judgment was entered on the verdict for that amount. Rosensteel was not subrogated to the rights of the plaintiff in the judgment, or authorized to issue any process upon it, by any order of court. Unless the attachment proceedings above recited clothed him with authority to substitute himself as use plaintiff in the judgment, and to enter and prosecute a suit for the revival and collection of it, the judgment appealed from should be reversed, and the proceedings which resulted in it should be set aside. It is claimed by his counsel that his judgments against the garnishee furnished a sufficient warrant for the institution of the suit, and naming him as use plaintiff in it. Fitzsimmons’ Appeal, 4 Pa. 248, and Reed v. Penrose’s Executrix, 36 Pa. 214, are cited as authority for this claim. Neither of them however decides the question before us. In the former case the question arose on the distribution of the proceeds of a sheriff’s sale of the property of Baldwin, who was Fitzsimmon’s debtor. The contest was between Fitzsimmons and his credi [88] tor who had obtained a judgment against him and issued an attachment execution thereon in which he recovered judgment against Baldwin as garnishee. It did not involve the control of Fitzsimmons’ judgment against Baldwin, nor the right of the attaching creditor to substitute himself as plaintiff in it, and issue process upon it. There is nothing in Reed v. Penrose, executrix, supra, which supports the appellee’s contention, or affects the question presented by this appeal. In Corson v. McAfee, 44 Pa. 288, Lowrie, C. J., referring to the rights of the attaching creditor said: “ His attachment is his suit to reach the debt alleged to be due to his debtor, and that is the only remedy to which the law entitles him. By that he gets a judgment against his debtor’s debtor, and an execution according to his judgment, and it is only in equity that he can claim subrogation to any of the collateral means held by his debtor for securing the debt attached.” This appears to us as a true and correct statement of the position and rights of the attaching creditor. The statute which gives him the attachment gives him in express terms process for the enforcement of the judgment he obtains in it. It contemplates the employment of this process before resorting to a suit upon the book account, note or judgment which his debtor has against the garnishee. Ordinarily the execution process given by it is adequate for the accomplishment of his purpose in issuing the attachment. If subrogation to the rights of his debtor in the judgment which the latter holds against the garnishee is necessary for his protection, he should apply to the court for it, and notify the plaintiff of the application. He cannot,- of his own volition mark the judgment for his use and issue process upon it. There is nothing in the record before us which shows that an execution was issued on the judgment obtained against the garnishee in the attachment proceeding, or that the judgment could not have been collected by it. The judgment is reversed, and the prgecipe and all proceedings thereunder are set aside.