Bergman v. Straus , 264 Pa. 439 ( 1919 )

Opinion by

Mr. Justice Simpson,

Plaintiffs issued a writ of foreign attachment against E. A. Straus & Company, a corporation, which was returned attached as commanded, summoned the garnishee and nihil habet as to defendant; appellants filed a petition averring there was no such corporation, but they composed a partnership of that name, and for that reason only moved to quash the attachment; plaintiffs moved for leave to amend by substituting appellants trading as F. A. Straus & Co., as defendants; the court below allowed the amendment, which was duly made, and discharged the motion to quash; appellants thereupon entered security and dissolved the attachment, and two days later prosecuted the present appeal assigning as errors that the court below erred in allowing the amendment, and in refusing to quash the attachment.

As the suit is still pending and undetermined in the court below, and no final judgment has been entered therein, the orders appealed from are interlocutory, and cannot be reviewed at this time (Richardson v. Richardson, 193 Pa. 279; Bellah v. Poole, 202 Pa. 71), unless the Act of April 26, 1917, P. L. 102, changes the practice in so far as the motion to quash is concerned. By its terms, however, it only relates to quashing or refusing to quash a writ of foreign attachment, whereas the motion in this case was not to quash the writ but the attachment, which latter may be overthrown for reasons wholly inapplicable to the former, as, for instance, where the service of the writ is improper: Penna. R. R. Company v. Pennock, 51 Pa. 244; or there is a lack of certainty in the affidavit of cause of action: Mindlin v. Saxony Spinning Co., 261 Pa. 354. It is not necessary, however, to pursue this matter further, for the same result would be reached if both matters were now reviewable.

When in accordance with the allowance of the court below the record was amended to make appellants parties defendant, they had the option of assenting to that action and acting under it, or of refusing to recognize it as valid, but they could not do both. In the present instance they did the former, for they entered security and dissolved the attachment: Sec. 62, Act June 13,1836, P. L. 583. It was only after they had obtained this benefit as defendants, they took the appeal from the order making them so. They were then estopped by the record from complaining thereof. So also, — even if we assume appellants had a standing to move to quash an attachment not issued against them personally, — having affirmed the action of the court below in making them defendants, they no longer had a basis for their only objection to the attachment, namely, that there was no such corporation as was therein named as defendant. The objection fell also when they dissolved the attachment, for that which had ceased to exist could not be quashed; and for the further reason that by Section 62 of the Act of 1836, above referred to, when an attachment is thus dissolved “the action shall proceed in due course, in like manner as if the same had been commenced by a writ of capias ad respondendum,” the bail standing in the place of the property attached, whereas the purpose of the motion to quash is to end the proceedings forever.

The orders appealed from are affirmed.