Stranahan v. Stranahan

Opinion, Mb. Chief Justice Paxson: The only complaint here, is that the court below erred in striking off the rule to arbitrate. The rule was entered by the garnishee in an attachment execution, after he had appeared and entered the plea of nulla bona. This raises the question whether an attachment execution comes within the compulsory [47] arbitration act of 1836. This act lias been in force for over fifty years, and the fact that no attempt has heretofore been made to apply it to execution attachments, is some evidence of the general belief of the profession that such cases do not come within it. The eighth section of the act of sixteenth June, 1836, provides that “ it shall be lawful for either party in any civil suit or action, his agent or attorney, to enter at the prothonotary’s office a rule of reference,” etc. Is an execution attachment a “civil suitor action,” within the meaning of this act? We think not. The suit or action here contemplated is an original suit; whereas, an execution attachment is execution process, with machinery added by which to reach money or property of the defendant in the hands of another person. Where a debt is attached, § 35, act of June 16, 1836, P. L. 767, provides that “ a clause in the nature of a scire facias against a garnishee in a foreign attachment, shall be inserted in such writ of attachment, requiring such debtor, depository, bailee, pawnee, or person holding the demise as aforesaid, to appear at the next term of the court, or at such other time as the court from which such process may issue shall appoint, and show cause why such judgment shall not be levied of the effects of the defendant in his hands.” The process against the garnishee is but a species of execution, to collect from him, or from effects in his hands, a judgment against another person: Newlin v. Scott, 26 Pa. 102. The case against the garnishee is not instituted as an adversary suit between him and the plaintiff, and it becomes such only where there arises a dispute between them as to the amount of money or other property in the hands of the garnishee ; that is, on or after the filing of the answer or plea: Idem. In Kase v. Kase, 34 Pa. 128, it was held that “ such process (execution attachment) is an execution against the effects of the defendant in the hands of the garnishee, rather than an action against the garnishee; and the latter cannot make all the defences that he could if the suit were by his creditor, for the process is valid, even though his creditor may have a suit pending, or a judgment obtained against him for the claim.” The act of 1836, in regard to execution attachments, points out specially the mode or practice to be pursued in prosecuting [48] such cases, and under the act of 1806, * such directions must be strictly followed. The power to arbitrate is nowhere given. Moreover, the results of such a proceeding would be incongruous. The proceeding by arbitration is wholly unsuited to execution attachments. Being execution process, it is at all times under the control of the court. The judgment against the garnishee, if there be one, may be moulded to suit the exigencies of the case, whereas the court has no such power over an award of arbitrators. Moreover, a rule of reference can only be entered by the plaintiff after a declaration or statement of the cause of action has been filed: § 9, act of June 16, 1836, P. L. 719. This shows conclusively that the arbitration act was intended to apply only to such suits or actions as are original in their nature, and not to such process as is merely in aid of execution. No one ever heard of a declaration being filed in an execution attachment. It was urged, however, that after a plea of nulla bona, an issue of fact is raised to which the arbitration act applies. We do not think the right to arbitrate depends upon the nature of the plea. It is true, there is an issue of fact to be disposed of by a jury, but this furnishes no argument in favor of arbitration. If it did, I do not see how we could avoid applying it to every case in which such issue is raised, whether it be a suit for divorce, an issue devisavit vel non, or an issue ordered by a chancellor. The act of assembly does not provide that every issue of fact may be arbitrated. We are of opinion that the court below committed no error in striking off the rule of reference. Judgment affirmed. Footnotes [*] § 13, act of March 21, 1806, 4 Sm. L. 332.