Turner v. Larkin ( 1900 )

Opinion by

Rice, P. J.,

It is well settled that the court of common pleas has power to dissolve, and according to some precedents, to quash, a writ of foreign attachment upon proof of facts which are not disclosed by the record, as, for example, that the defendant is a resident of the state or that the property is not liable to foreign attachment. It is equally well settled that where a court of record may quash or dissolve on extrinsic evidence, which cannot be put on the record, the presumption on appeal is that everything was done rightly and according to law. All that is brought up for review on an appeal from an order quashing the writ is the record, and the affidavits and depositions read on the hearing of the motion are not part of the record. See Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, and cases there cited, Little v. Balliette, 9 Pa. Superior Ct. 411 and First Nat. Bank v. Crosby, 179 Pa. 63.

Neither of these propositions is controverted by the appellant’s counsel. He does not ask us to review the action of the court below on the merits; indeed he frankly admits that it was clearly shown by the depositions that the defendant was a resident of the state at the time the writ issued. His contention is that by entering a general appearance a defendant precludes himself from attacking the regularity of the writ on the ground of his residence here. He contends further that the defendant in the present case must be deemed to have entered a general appearance for two reasons, which we state in his language. First, because the petition of the defendant, on which the rule to show cause why the foreign attachment should not be quashed or dissolved was granted, contained a nonjurisdictional reason for the quashing of the foreign attachment proceeding, to wit: “ that no statement or declaration has been filed.” The argument of the plaintiff’s counsel in support of this proposition is ingenious, but it has failed to convince us that the principle involved has any application to this case. Without going into a discussion of the general principle it seemed sufficient to say that the petition does not show that the quashing or dissolution of the attachment was asked for the reason above stated. The petition concludes as follows : “Your petitioner, therefore, showing that he was a resident of the state of Pennsylvania at the time said writ issued, and that the plaintiff is not entitled to maintain his suit of foreign attachment, prays that the same may be quashed and further proceedings thereon stayed.” This, so far as the record shows, was the reason for which he asked to have the writ quashed or dissolved. If the fact was as stated, it was a sufficient reason, and he did not preclude himself from urging it by merely reciting in his petition the proceedings as shown by the record. This seems too plain for argument.

The second reason urged in support of the plaintiff’s contention is, because the order for the entry of the rule for deposiinto on behalf of the defendant contained the words, “ attorney for defendant.,” as an addition by E. H. Hall, Esq., to his name. By the rules of court in Delaware county appearances, de bene esse, are not permitted, and on the hearing of rules to show cause, where matters of fact are to be investigated, witnesses will not be examined at bar, except by special order, but depositions must be taken. The purpose for which depostions were taken was to establish the fact upon which the rule to show cause was based, and, of course, the defendant had a right to employ counsel to take out a rale for that purpose. This, so far as the record shows, is all that the counsel did which in any way can be regarded as an appearance. We hold that this was not sufficient to take the case out of the general rule that a party may appear specially for the purpose of stating an objection without thereby waiving it.

The order is affirmed and the appeal dismissed at the costs of the appellant.