Grieb v. Kuttner , 135 Pa. 281 ( 1890 )

Opinion,

Mb. Justice Mitchell:

The extent of the revisory powers of this court over all judicial proceedings of subordinate tribunals has been discussed and defined in numerous eases, which are cited and classified by Agnew, J., in Penna. R. Co. v. First German Luth. Cong., 53 Pa. 445, 450, 451. The particular jurisdiction brought before us in the present case, that of a judge issuing a warrant of arrest, under the act of 1842, for fraudulent debt, was carefully considered in Gosline v. Place, 32 Pa. 520, and again in Berger v. Smull, 39 Pa. 302. In the former, Chief Justice Lowbee shows that certiorari and habeas corpus are both appropriate remedies, and may be used separately or together. In that case, the certiorari was the principal writ, and the habeas corpus was issued subsequently for the incidental purpose of admitting the relator to bail pending the hearing of the certiorari, and Chief Justice Lowbie says expressly that the habeas corpus is ancillary only. Berger v. Smull was upon certiorari, and there was no habeas corpus in the case.

In view of these decisions, it is now too late to question the right of the plaintiffs to a review upon certiorari; and the contention that that writ-lies only as ancillary to a habeas corpus cannot be sustained. It is true that both in Gosline v. Place and Berger v. Smull the defendant below had been committed by the judge, and the review of the proceedings was sought here for the purpose of escaping the consequences of the commitment. But the reasoning of both cases shows that this circumstance was not only not important, but was not considered relevant at all in reaching the decision. In Berger v. Smull, as already noted, there was no habeas corpus, and the result of the cases is that certiorari and habeas corpus may be used separately or together; and when used concurrently, the question, which is the principal writ and which merely ancillary, will depend on the facts of the particular case and the nature of the relief sought. The motion to quash this appeal must therefore be dismissed.

While the right to a review or certiorari is clear, it is equally ■well settled that our action is limited to the regularity of the proceedings as they appear upon the record.

The learned judge issued a warrant upon the affidavit filed by plaintiffs. The defendant moved to quash the warrant, and after argument the motion was allowed, and the warrant quashed, the learned judge filing of record an opinion setting forth the grounds of his action. This opinion, not being strictly part of the record, is not reviewable here, in the sense that it can be made the basis of decision. But, as matter of information for this court, it confirms the deduction we should, without it, be forced to draw from the face of the record, that there was no hearing and no action of the judge on the merits of the case. We have before us, therefore, a record showing an affidavit sufficient to support a warrant; a warrant, regularly issued, reciting that plaintiffs' have “produced satisfactory evidence of said charges, as is fully set forth in the affidavit; ” and an order quashing the warrant on motion, without a hearing on the facts. Such a record is reviewable here. It is not like the case of foreign attachment, where the validity of the writ depends on an extrinsic fact which can only be heard and determined by the court issuing the writ, and the evidence of which cannot be put on the record, but, like an attachment under the act of 1869, the jurisdiction to issue which must appear in the affidavit which is on the record. An order dissolving such an attachment is not reviewable: Wetherald v. Shupe, 109 Pa. 389, because, as was said by Justice Thompson in McElroy v. Dwight, quoted in the report of Holland v. White, 120 Pa. 232: “We cannot review the action of the court below in quashing the attachment upon a question of fact.” But an order to quash based on a question of law appearing on the record is reviewable on certiorari, as was done in Parks v. Watts, 112 Pa. 4. So here, if the judge had heard the evidence and discharged the defendant, his action would not have been reviewable; but, as the warrant was quashed for matter of law appearing on the record, to wit, that the proceedings, as appears by the affidavit on which the warrant issued, were had in an action commenced by attachment under the aet of 1869, we must consider the question of law thus raised.

The object of the proceeding by warrant of arrest under the act of 1842, and by attáehment under the act of 1869, is the same, to compel payment of a debt fraudulently contracted, or payment of which is fraudulently evaded, but the modes of reaching it being entirely different, prima facie they are cumulative, and may be used concurrently. The attachment under the act of 1869 is the grasp of the law laid upon the goods of the debtor, analogous to execution by fieri facias; while the arrest under the act of 1842 is the grasp of the law on his person, analogous to that of a capias ad satisfaciendum. At common law, both forms of execution could issue concurrently : Pontius v. Nesbit, 40 Pa. 309; Tome’s App., 50 Pa. 285, 298, though there could be but one satisfaction. Where, as in the present case, they are issued as mesne process, the attachment simply holds the property by lien, as security for payment if the plaintiff recover judgment. The warrant holds the debtor’s person for the same purpose until he gives bond to pay, or that his property shall not be removed or disposed of, or that he will comply with the requisitions of the insolvent law. The attachment gives the creditor the security of an immediate grasp on such property as the sheriff can find, and the warrant gives him security that all the property rightfully liable for his debt shall be forthcoming to satisfy it at the appropriate time. There is nothing repugnant in these methods, and both may be necessary to a complete remedy. That they are not necessarily exclusive of each other is shown by the consideration that the attachment may be dissolved, and the suit go on as upon summons. In such an event—if, for example, an attachment should issue for fraudulent contraction of the debt, and should be dissolved for failure of proof, the action continuing as if upon a summons, and thereafter the debtor should fraudulently attempt to remove or conceal his goods—there could be no doubt that a warrant of arrest would lie. We see no reason why the same result should not follow where the attachment fails to grasp sufficient property to satisfy the claim, or from any other cause proves to be an inadequate remedy.

The cases cited on behalf of the defendant are not analogous, for they rest on the common-law doctrine that a levy on a fieri facias is presumed to be satisfaction, and therefore there is no debt to support the issue of a warrant. The closest of

them, Fenstman. v. Ury, 2 Pears. 357, was an attachment after judgment, and, as said by the court, attached all the debtor’s property that could be reached by proceedings under a warrant of arrest. Such eases present a different question from this, and are not in conflict with our conclusion.

The order quashing the warrant is reversed, the warrant reinstated, and procedendo awarded.