Ruff v. Ruff , 1878 Pa. LEXIS 251 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

William Hillis having taken the assignment of the judgment note, executed by Michael Ruff in favor of C. P. Ruff, after the issuing of the attachment by Barclay, can have no other or better standing in this controversy than his assignor. We may treat the matter, therefore, as between the original parties to the note. It appears, from the statement we have before us, that Thomas J. Barclay, to May Term 1870, issued an attachment, from a judgment he then had against C. P. Ruff and others, with notice to Michael Ruff, the defendant in the case now trying, as garnishee. Upon this attachment the court directed an issue with Barclay as plaintiff and the garnishee as defendant. A trial was had, in due course, which resulted in a verdict and judgment for the defendant. This established conclusively, as to the parties to the issue and their privies, that Michael Ruff had, in his hands, no money, goods or effects of any kind, belonging to C. P. Ruff.

The one question for us to resolve is, was O. P. Ruff, by reason of his having been served with the writ of attachment, such a party or privy to this issue as would make the judgment therein binding on him ? If he is so bound, the demurrer to the defendant’s plea in bar was well ruled by the court below; if not, that ruling was erroneous. But if he was such a party, then should he have been included in the issue and the jury should also have been sworn as to him ; this, however, was not done; and why not ? The answer is, because he had no standing as a party against the garnishee, and was, therefore, properly excluded from a participation in the trial. If he had aught to say against the judgment, from which the attachment issued, he might have pleaded and had issue; it is, that he might have such opportunity, that the Act of Assembly directs that notice be given the debtor, if he is in the county. With such trial, however, the garnishee has no concern, neither is it a prerequisite to a trial against him: McCormac v. Hancock, 2 Barr 310. It is thus apparent that the two issues are quite distinct, and that whilst in the latter, the garnishee has no interest, in the former the debtor has none, and so may not intervene either to direct or control it. So completely does his interest antagonize that of both the contending parties that, even before the Act of 1869, he might have been a witness for either: Gemmill v. Butler, 4 Barr 232. Again, it is not correct to assume that the attaching creditor stands, in all respects, in the place of the debtor as to the goods and credits attached; for, if such were the case, then would a judgment, for or against the garnishee, be conclusive, not only as to the debtor, but also as to his creditors. Such, however, is not the case as to creditors or trustees in insolvency: Breading v. Siegworth, 5 Casey 396; Tams v. Bullitt, 11 Id. 308.

What shall we say, then; that the debtor is concluded by the result of an issue in which he has no interest; from which by legal rule he is excluded; in which he cannot be heard, except as a witness, and which does not conclude his creditors? This proposition contains in itself its own answer. If one is to be concluded by a judgment he must have his day in court; some say in, and control over, the trial. But C. P. Ruff had neither control over nor say in the issue between Barclay and the garnishee. Barclay might have permitted the case to go by default; he might have discontinued, or he and the garnishee might have compromised, and C. P. Ruff could not have intervened to prevent either. He was literally barred out of the case, and for the sufficient reason that he was no party to it; hence, by all rule, he is not concluded by the judgment resulting from its trial.

The judgment of the court below is reversed, and it is ordered that judgment be entered, on the demurrer, for the plaintiff for the amount of the original judgment, with interest to this date (January 7th 1878), to be liquidated by the prothonotary of the Court of Common Pleas of Westmoreland county.