Kohlhaas v. Veit , 162 Pa. 108 ( 1894 )

Opinion by

Mr. Justice Williams,

The affidavit on which the warrant of arrest in this case was issued alleged the existence of a debt or demand due from the defendant, and the pendeucy of an action in the Court of Common Pleas of Philadelphia for its recovery. It also alleged the fraudulent sale of the business and property of the defend-ant for the purpose of placing it beyond the reach of defendant’s creditors.

This affidavit was sustained by those of Geo. Pitschler and Gottfried Flam, who swore to the declarations of the defendant to the effect that he would place his property beyond the plaintiff’s reach if he kept on trying to collect his demand. When the defendant was arrested and brought before the learned judge by whom the warrant was issued, he made no answer, but moved to quash the writ, and the learned judge made the order moved for because the averment in the affidavit that there was a debt due him from the defendant was not sufficiently definite. The averment is as follows: “That the said business and aforesaid goods were disposed of as aforesaid, pending the suit which was lately brought in the Court of Common Pleas No. 2 of Philadelphia county, as of March term, 1893, No. 839, by deponent against the said Adolph Veit and Theressa Veit to recover a balance of $700 due by them to deponent for part of the total purchase money of $1,700 agreed to be paid by them in purchase of said bottling business, machinery, tools, fixtures, horse, wagon, and harness aforesaid, which had been sold tc them by deponent on or about April 24, 1893.”

Here we have a statement that the goods sold by defendant had been bought by him from the plaintiff, and that the note in suit was for the balance of the purchase money “ due by them to deponent ” for the same goods. This was in no sense evasive or doubtful in character, but was a distinct statement of the existence of an indebtedness due from the defendant to- the plaintiff which he was seeking to recover in the court of common pleas. The learned judge was mistaken therefore when he said of the affidavit, “ It nowhere says that the sum is due.” The defendant should have been required to answer the plaintiff’s affidavit, and if an issue of fact had thus been raised this should have been heard and decided by the judge. The cases’cited in support of the ruling appealed from do not support it. Berger v. Smull & Sons, 39 Pa. 302, does not discuss this question, but an examination of the case shows that the affidavit was substantially like the one in this case. It stated that there was at the time of bringing this suit “a balance due from the defendant to the plaintiff of $19,598.47 as per account current.” In this case the averment is that the action was brought “ to recover a balance of $700 due by them to defendant for part of the total purchase money of $1,700, agreed to be paid by them.” The affidavit in Gosline v. Place, 32 Pa. 520, merely alleged that the defendant was “ indebted to the said U. M. and W. H. Place in the sum of $3,019.90 for goods ” which were particularly described in the affidavit, and that “suit has been commenced in the court of common pleas of said county for the reeoverj'- of the said debt.” No specific averment that a particular sum is presently deman dable seems to have been thought necessary in any of the reported cases where it reasonably appeared that a debt was demanded, and suit had been brought for its recovery, or a judgment actually obtained.

The order quashing the warrant of arrest is reversed, and the record remitted with directions to proceed in accordance with the act of 1842.