Slingluff, Johns & Co. v. Sisler

Opinion by Mr. Justice Green, If the act of 1878, as amended by the Act of 1879, P. L. 125, had simply created additional return days, there would have been no such hostility between that act and the Act of March 17, 1869, P. L. 9, as that the two could not stand together, and therefore the provisions of the act of 1869, that the writ of attachment should “ be made returnable on the first return day of said court next after the time of issuing thereof,” would not have been repealed by the later act. In that event there would have [268] been only additional return days, and tbe provision of tbe act of 1869, that in attachment cases under that act the writ should be returnable on the first return day after it issued, would still have prevailed in all that class of cases. But the act of 1878 did more than create additional return days. It provided that the party suing out the writ may at his own election make the process returnable “ on the first Monday of next term, or on the second, third or fourth Monday of any intermediate month.” If the plaintiff in the writ could make it returnable on any of these days at Ms own pleasure, he was no longer bound to make it returnable on the particular return day fixed by the act of 1869, hence that act was no longer the binding authority fixing the return day. On the contrary, under the act of 1878, and tbe rule of court adopted by the court below under the authority of the act, it was the mere will of the plaintiff in the writ that determined what should be its return day. Williamson v. McCormick, 126 Pa. 274, has no application. The Act of 1871, P. L. 1160, merely created two additional return days, and contained no provision like that in the act of 1878 making the return day depend on the mere will of the plaintiff in the writ. The act was confined to the county of Luzerne where the case arose. The act of 1878-was not considered by the cqgirt, nor could it have been, as no rule of court authorized by the act' of 1878 was ever adopted by the common pleas of Luzerne county, and the question at issue in this case could not arise in that. It follows that there was no error in refusing to set aside the writ on the ground that it was not made returnable on the first return day after the issuing of the writ. On the question as to setting aside the writ upon the ground that there was no proof of any facts sufficient to sustain the writ, we have frequently decided that in this class of cases the appeal brings up nothing but the record, and that we will review nothing but the regularity of the proceedings: Wetherald v. Shupe, 109 Pa. 389; Hoppes v. Houtz, 133 Pa. 34; Lafferty v. Corcoran, 175 Pa. 5; Hall v. Oyster, 168 Pa. 399; Moss v. Mitchell Bros., 174 Pa. 517. In all the foregoing cases we held also that the order dissolving, or refusing to dissolve, the attachment, was but an interlocutory order from which an appeal would not lie. In Moss v: Mitchell Bros, we said, “We con [269] sider it beyond all question that tbe order refusing to dissolve the attachment is interlocutory only, and. that hence no appeal will lie at this time. The appeal is a mere substitute for a certiorari, and brings up nothing but the record: Hoppes v. Houtz, 133 Pa. 34. The evidence.is not before us, and there is nothing to show that the court below was in error.” The exception in case of an abuse of discretion will not be applicable here because there is nothing before us to show that there was any abuse of discretion in refusing the order. In Wetherald v. Shupe, 109 Pa. 389, we said, Gordon, J.: “ There are two reasons why the action of the court below in dissolving the attachment in this ease cannot be reviewed on a writ of error from this court: (1) The 6th section of the act of March 17, 1869, under which the process in attachment was had, gives to the court of common pleas when in session, or to a judge thereof in vacation, a discretionary power to dissolve the attachment issued under its provisions, and the statute gives us no power to review the exercise of that discretion; (2) the proceedings are contrary to the course of the common law; they are purely statutory, hence they can be reviewed on a certiorari only, and not upon a writ of error. ... It follows that whatever our opinion may be as to the rectitude of the action of the court below in the premises . we are obliged to quash the writ of error.” In Lafferty v. Corcoran, 175 Pa. 5, we said: “This is an appeal from the decree of the court below discharging defendant’s ‘ rule to show cause why the writ of attachment should not be quashed,’ etc. In the absence of any statutory authority for an appeal in such cases, we have no power to review the action of the court below in the premises.” In Hall v. Oyster, 168 Pa. 399, we said: “ This so-called appeal is in fact merely a certiorari, and must be so treated. It brings up for review nothing but the record proper, which does not include the evidence on which the court acted in dissolving the attachment. Under the act of 1869 that action of the court below was within its discretion, and we have nothing before us to show that the discretion was abused.” Other authorities are to the same effect. The question is not an open one. Judgment affirmed.