Hays v. Lentz

Opinion by Beaver, J., An attachment execution was issued upon a judgment against the defendant,. August 23, 1897, returnable October 4, 1897. Interrogatories were filed September 20,1897, and a rule granted on garnishees to answer on or before October 11, 1897. August 27, 1898, defendant made his claim for exemption. The court below found as a matter of fact that he was guilty of laches and that his claim for the exemption came too late. Although the attachment was returned nihil habet as to defendant, it would appear from the evidence that he had knowledge of the issuing of it before the return day. The decisions upon this subject are uniform and in effect establish a fixed rule. In Bittinger’s Appeal, 76 Pa. 105, in which the claim for exemption was made after the return day and disallowed by the court below, the Supreme Court said: “ It is important in a matter of practice such as this that there should be a definite rule to guide both parties. It is certainly not a hard one to require the defendant to make his claim during the term when he should appear to answer the writ.” This rule has been insisted upon since and, in Harlan v. Haines, 125 Pa. 48, it was said: “ The rule established in Bittinger’s Appeal, supra, has not been infringed by subsequent decisions. It is a reasonable and just rule and it fully sustains the action of the court below in this case.” Loan Assn. v. Railroad Co., 102 [403] Pa. 220, cited by the appellant, was a case in which the defendant had no knowledge of the issuing of the attachment and made his claim as soon as he acquired such knowledge. It can hardly be said, therefore, to be even an exception to the rule, because it does not come within it. The only excuse urged by the appellant for his laches is that, having waived the benefit of the exemption law in the judgment note, upon which the original judgment (the one in which the attachment issued, being the last of a number of sci. fas. issued thereon) was entered, he did not know that he had any right thereto, alleging that a decision by one of the courts of Pennsylvania declared the law to be that a waiver of exemption contained in a judgment note but not recited in a judgment upon a scire facias issued thereon did not bind the defendant and that the claim for exemption was made as soon as he knew of the law. This claim, however, is not good. If the law is as the defendant claims, it was the same when the attachment was issued and he was bound to know the law and to take advantage of it. His ignorance is no excuse. The question as to whether or not a failure to carry forward the notice of the waiver of exemption and have it appear affirmatively upon the record of a scire facias upon the original judgment, relieves the defendant from the effect of the waiver is not before us and as to it we express no opinion. The only assignment of error relates to the finding of the court as to the laches of the defendant, and the denial of his right to the exemption based thereon. As to this the court below was undoubtedly correct and its order in reference thereto is, therefore, affirmed.