Steinman v. Kreider

Per Curiam, This action was begun by attachment under the Act of March 17, 1869, P. L. 8, as amended by the Act of 'May 24, 1887, P. L. 197. The defendant filed a sworn answer denying many of the facts alleged in what is styled “plaintiff’s affidavit of claim,” upon which the attachment issued, and denying particularly the allegations of fraud. This answer concluded with the suggestion “that the attachment should be dissolved, it having caused him a great inconvenience and financial loss.” Between three and four months later the defendant presented his petition and affidavit, conforming in many particulars to his previous answer, again denying the allegations of fraud and concluding with a prayer for a rule to show cause why the attachment should not be dissolved. The court granted the rule, and after hearing upon depositions made it absolute. From that order the plaintiff took this appeal. 1. It is contended that the petition to dissolve was presented too late. This contention is based on the assumption that the answer filed by the defendant was an affidavit of defense on the merits. But as already seen, it was more than that. By denying the allegations of fraud, and suggesting that the attachment should be dissolved, ground was laid for a formal application for a rule to dissolve. By no sort of reasoning can it be held to be a waiver of that right. 2. The remaining portions of the argument by appellant’s counsel are directed against the conclusion reached by the court from a consideration of the evidence presented by the depositions. But it is well settled by the [416] decisions that the appeal in such case brings up nothing but the record proper, which does not include the evidence upon which the court acted: Wetherald v. Shupe, 109 Pa. 389; Hall v. Oyster, 168 Pa. 399; Lafferty v. Corcoran, 175 Pa. 5; Slingluff v. Sisler, 193 Pa. 264; Ingram v. Orangers, 33 Pa. Superior Ct. 316. It is to be observed that the issue before the court, under the affidavit upon which the attachment was founded, was whether the defendant had fraudulently contracted the debt, or had disposed, or was about to dispose, of his property with intent to defraud his creditors. This being the issue, we discover nothing in the opinion of the learned judge to warrant the conclusion that he proceeded upon a wrong theory in considering the evidence. Strictly speaking, the opinion filed at the time the order was made is not part of the record. But even if it be looked into to ascertain the grounds of the decision, no abuse of discretion is disclosed. It is to be observed further that the dissolution of the attachment did not end the action, and, therefore, the argument, as to the province of the jury in determining questions of fact as to the amount and extent of defendant’s indebtedness, is not pertinent in the present inquiry. The order is affirmed.