Poor v. Colburn

The opinion of the court was delivered, by

Sharswood, J.

Upon the trial of the attachment-execution in this case in the court below, the only issue was upon the plea of nulla bona, in which both the defendant and the garnishees joined. The question on that issue was simply whether there was any debt due the defendant by the garnishees or deposit of money made by him or of goods or chattéls pawned, pledged or demised, which was within the grasp of the process according to the Act of Assembly of June 16th 1836, § 35, Pamph. L. 767. Whether the process was regular or irregular was clearly aside from that issue, and could not be properly raised on the trial, any more than could the question whether a capias had been regularly issued against a freeholder on a plea to the declaration. The court, however, reserved the question, and under this reserved point set aside the process. Even, however, if the action of the court be considered as independent of what took place on the trial, it was entirely too late a stage of the cause to permit such an objection to the proceedings to prevail. It could not be pretended that the process was void and that the court had no jurisdiction: Swanger v. Snyder, 14 Wright 222. However it might have been if the garnishees had stood by themselves in court, the defendant appeared to the process and joined in the plea. There could not have been a stronger and more unequivocal waiver of all irregularity in the process: Zion Church v. St. Peter’s Church, 5 W. & S. 215; Sherer v. The Easton Bank, 9 Casey, 134. It is a well-established rule of practice that application to set aside proceedings for irregularity should be made as early1 as possible, or, as it is commonly said, in the first instance. If the party take subsequent steps in the cause, he cannot afterwards revert to the irregularity and object to it: 1 Tidd’s Pr. 513. The defendant should have moved to quash the attachment at once on his appearance, but having pleaded, and subjected the plaintiffs to the delay, trouble and expense of preparing for trial, it was entirely too late for him to make the objection when the case came before the jury.

But the verdict was wrong, and no judgment could be entered upon it. It found “ that the money in the hands of Peter Summers (one of the garnishees) belonged to Thomas Kelly (the defendant), and that Poor & Mills (the plaintiffs) are entitled to |69.41.” It does not find how much was in the hands of Summers, and finds nothing as to the other garnishees. Upon this issue, the verdict ought to have been for the plaintiffs, and that there was a certain sum belonging to the defendant in the hands of Summers, and in favor of the other garnishees: Act of June 13th 1836, § 58, Pamph. L. 582; Flanagin v. Wetherill, 5 Whart. 280.

Judgment reversed, and venire facias de novo awarded.