Bonnaffon v. Thompson

Mr. Justice Mercur,

delivered the opinion of the court, May 7th 1877.

This is a case of attachment execution. The 35th section of the Act of June 16th 1836, Purd. Dig. 639, pl. 32, declares that a clause in the nature of a scire facias against at garnishee in a foreign attachment, shall be inserted in the writ of attachment, requiring such debtor, depositary, or bailee to appear and show cause why the judgment shall not be levied of the effects of the defendant in his hands.

In form, then, a writ of attachment execution is like the writ of scire facias, which issues on a judgment obtained in foreign attachment. With the exception that the former binds no property until served, its force and effect are substantially the same as the latter. The mode of procedure is the same in each. The 58th section of the Act of June 13th 1836, Purd. Dig. 720, pl. 19, declares, “If issue be taken and a trial be had upon any scire facias as aforesaid, the jury shall find what goods or effects, if any, were in the hands of the garnishee at the time the attachment was executed as aforesaid,* or afterwards, and also the value thereof.” On a judgment thus obtained the execution is not, in the first instance, against the garnishee as for his proper debt, but it is twofold; first, to be levied of the goods or effects so found in his hands, or so much thereof as may satisfy the plaintiff’s demand; and secondly, against him as of his proper debt, if he refuses to produce the goods and effects : Bean, 6 Whart. 181; Hampton et al. v. Matthews et al., 2 Harris 105.

The plea in this case was nulla bona. That was the issue tried. The verdict returned was not responsive to the issue. It is a verdict for a specific sum of money. It palpably disregards the explicit requirements of the statute. If the record showed the property in the hands of the garnishee was in money, as in Flanagin v. Wetherill et al., 5 Whart. 280, the judgment would do no injury to the plaintiff in error. As it might have been amended, in that case, by the court below, we would not disturb the judgment. But no such fact is shown. The verdict makes the garnishee liable for the sum found, as for his own proper debt. The execution must follow the judgment. The production of .goods and effects which this jury may have valued at the sum found in their verdict, might fall far short of satisfying the execution.

Under the pleadings, the verdict is clearly wrong, and no judgment could be entered upon it: Poor v. Colburn, 7 P. F. Smith 415 ; Bouslough v. Bouslough, 18 Id. 495. The assignments are therefore sustained.

Judgment reversed, and a venire facias de novo awarded.