Reed's Appeal , 1872 Pa. LEXIS 166 ( 1872 )

The opinion of the court was delivered, by

Sharswood, J.

It was settled in Brown’s Appeal, 2 Casey 490, that where there has been a feigned issue and a verdict and judgment, in the case of the distribution of the proceeds of a sheriff’s sale, the proper course is to bring up the whole record by appeal. I cannot reconcile that decision with the express provisions of the Act of June 16th 1836, Pamph. L. 777, which after enacting, sect. 87, that if any fact connected with the distribution shall be in dispute, the court shall, at the request in writing of any person interested, direct an issue to try the same, and that the judgment upon such issue shall 'be subject to a writ of error in like manner as other cases wherein writs of error now lie, it declares, sect. 88, that upon a writ of error issued as aforesaid, the whole record shall be returned, and it shall be competent for any person aggrieved by the decree of distribution to take exceptions thereto if the judgment upon such issue should be affirmed. It is clear that the writ of error does not lie until after final decree, and that it is only in the event of the affirmance of the judgment upon the feigned issue that the decree of distribution is to be reviewed in this court. It was meant that as the trial by jury on the disputed facts was given to the parties as a constitutional right, so the verdict and judgment unreversed should be conclusive; if reversed, the cause must be remitted for another trial. Upon an appeal from the decree simply, how can it be reversed if it conform as to the facts to the verdict and judgment upon the feigned issue; in other words, upon such an appeal without a writ of error, must not the parties be held to have acquiesced in the judgment? This view seems to be confirmed by the 89th section, which provides that any person aggrieved by the decree of the court in any case of distribution made, without the intervention of a jury, may, at any time within twenty days thereafter, appeal from the same to the Supreme Court. The act may be held not to take away the right of appeal even from the parties to the feigned issue, if it be assumed that there is some general right' to appeal not founded upon express statutory provisions, and that is the extent of the determination in Brown’s Appeal, and with the judgment in that case, so far as it goes, we do not mean to interfere. No question arose in that case on any bill of exceptions on the trial of the feigned issue. The verdict of the jury was special, and was acquiesced in, and the judgment of the Supreme Court was that, assuming it to be true, the decree below was wrong, and it was accordingly reversed. We hold the proper practice to be as to the parties to the feigned issue, whenever errors are alleged to have occurred on the trial, after the decree of distribution, by a writ of error to bring up the whole record. If they appeal without accompanying their appeal with such writ, no judgment of reversal of the judgment on the feigned issue can be regularly entered here on the appeal from the final decree, and as a consequence the finding of the jury upon the feigned issue must be regarded as conclusive. We are aware that this court has in some cases expressed its disapprobation of writs of error on feigned issues, as in Christophers v. Selden, 4 Casey 165; hut that was a case in which the writ of error was issued before the final decree, a practice contrary both to the letter and spirit of the act, and in such a case the writ ought undoubtedly to be quashed. The only tendency of such writs is to procrastinate. It is true that the proper practice under the provisions of the act should be understood, and we think it ought to be as indicated in this opinion.

Assuming the verdict of the jury below as settling the question of fact that Tamblyn was, at the time of the issuing of the foreign attachment, a non-resident of the Commonwealth, the decree of the court below was entirely right. Upon the main position assumed that the subsequent judgment-creditor had no standing in court to question the prior lien of the attaching creditor, we consider it as settled by Pfoutz v. Comford, 12 Casey 420. In that case upon a foreign attachment laid upon personal property, a subsequent execution-creditor was allowed to intervene and contest the question whether the defendant in the attachment was a nonresident. It would be an anomaly if a man, by issuing a foreign attachment against a resident, could thereby obtain an immediate lien, either upon land or goods, which would take precedence of subsequent judgments or executions. Reed, the appellant and judgment-creditor, had a clear right to show that Tamblyn was not a non-resident within the meaning of the Act of 13.th June 1836, § 44, Pamph. L. 580, and that he acquired no lien by the writ. Were the bills of exceptions properly before us, we would be compelled to hold that the learned judge erred on the trial of the feigned issue in affirming the plaintiff’s 1st point; but it was an error which has done the appellant no injury, for it clearly appears in the evidence, and was admitted in the argument at bar, that at the time the writ of foreign attachment issued, Tamblyn had actually taken up his abode with his family in Chicago, with the intention of making it the place of his permanent residence. It was decided by this court in Pfoutz v. Comford, supra, that a debtor does not become a non-resident, so as to subject him to a foreign attachment, by leaving his place of abode in this state, and going to another state to seek a new residence, but continues a resident of the state until he has obtained another place of abode with the intention of remaining in it. This decision accords entirely with all the authorities. Mr. Justice Grier expressed it clearly and tersely in White v. Brown, 1 Wall. C. C. R. 264: “A man cannot he considered as a vagabond or a person without any domicil; for the domicil of origin is not abandoned until a new one has been intentionally and actually acquired.” A domicil once acquired remains until a new one is acquired actually, facto et animo ; the fact and intention must concur: Story on Confl. § 47. There is one recognised exception to this rule, which is that the domicil of birth easily reverts, and therefore if a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native domicil, the latter is reacquired, even while he is on his way, in itinere; for the native domicil reverts the moment the acquired domicil is given up with the intention of resuming the former: Story on Confl. § 47. In this as in other cases, exceptio probat regidam.

Decree affirmed.