Steel v. Goodwin , 113 Pa. 288 ( 1886 )

Mr. Chief Justice Mercur

delivered the opinion of the Court,

Tins was a proceeding in foreign attachment against the defendants who resided in New York, with notice to garnishees who resided in Philadelphia. The writ was served on the latter. On the application of Bird, assignee for the- benefit of creditors of the defendants, the Court quashed the writ of attachment. This is assigned as error.

The assignment of the defendants was executed on the 11th December, 1884, and on the day following was recorded in the city of New York, where if was made ; but was not recorded in Pennsylvania until the 24th of the same month.

This writ of attachment was issued and served on the 12th of December. The plaintiffs were then informed of the insolvency of the defendants, but had no knowledge of the assignment.' Neither at the issuing of the writ, nor at any time thereafter, was the assignee made a party to the record, nor did he pray to become such. He did not ask that the attachment be dissolved, nor that the service of the writ be set aside. He only asked that the writ itself be quashed. The Court granted his request. Was this error ? He certainly occupied no higher ground than the defendants under whom he held. He did not stand in the position of a good faith purchaser for value: Ritter v. Brendlinger, 58 Pa. St., 68; Missimer v. Ebersole, 87 Id., 109; Kent, Santee & Co.’s Appeal, Id., 165 ; Morris’s Appeal, 88 Id., 868.

The garnishees did not allege any defect in the service on them. On the contrary they admitted its validity, and asked leave to pay into Court the money attached.

The defendants resided in the state of New York. The plaintiffs resided in this State, and the property sought to he attached was here. Was it subject to foreign attachment for a debt due from the defendants ? No service of the writ on them was required. The service on the garnishees was not set aside, nor was the attachment dissolved. It is not now necessary to decide any question relating thereto. The writ having been quashed, the sole contention is whether the action of foreign attachment lies.

The Act of 3d May, 1855 (P. L., 415), declares: “Whenever any person making an assignment of his or her estate situate within this Commonwealth, for the benefit of creditors, shall be resident out of this State, such assignment may be recorded within any county where such estate, real or personal, may be, and take effect from its date ; provided that no bona fide purchaser, mortgagee or creditor having a lien thereon before the recording in the same county, and. not having had previous actual notice thereof, shall be affected or prejudiced ” by said assignment.

The power of a state to regulate the transfer of all propertv within its territory is well established: Story’s Conflict of Laws, § 390 ; Milne v. Moreton, 6 Binn., 361 ; Green v. Van Buskirk, 7 Wall., 151; Warner’s Appeal, 13 W. N. C. 505. When this power is asserted by legislation of the state where the property is situated, any principle of comity in conflict therewith must not render the legislation invalid: Id. When, therefore, a foreign attachment is issued in any county in this Commonwealth where the property of a non-resident is situated, after the execution of an assignment in another state, but prior to the recording thereof in the county where the property is found, the attachment has priority over the assignment : Id ; Philson et al. v. Barnes, 50 Pa. St., 230.

The power of quashing writs is limited to proceedings that are irregular, defective, or improper : Crawford v. Stewart, 38 Pa. St., 34. If it appears on the face of the record that the proceedings are void, or grossly irregular, or where it is clearly shown that a valid cause of action in this form does not exist, the Court may, on motion of the defendant or of the garnishees in his behalf, quash the writ. No such case is presented here. This record does not show anything irregular, defective, or improper in the commencement of the action.

As we have declared, the residence of the defendants, and of the garnishees, and the debt due from the latter, were such as to make the action proper. The attempt of the assignee was to show by evidence dehors the record, that the indebtedness from the defendants to the plaintiffs was not yet due. This, however, was a disputed question which should be passed upon by a jury. The learned judge erred in determining it against the plaintiffs as matter of law, and thus putting them out of Court. The right of the plaintiffs to maintain an action under all the evidence cannot be disposed of in this summary manner. An existing indebtedness from the defendants to the plaintiffs being unquestioned, the latter are entitled to have the other question, which is controverted, submitted to a jury: Lancaster County Bank v. Gross et al., 50 Pa. St., 224; Lorenz v. Orlady, 87 Id., 226.

Judgment reversed, rule, to quash the attachment discharged, and a procedendo awarded.