Borden v. American Surety Co.

Opinion by

Mr. Chief Justice Sterrett,

This suit is against defendant company as surety in the recognizance of bail given to dissolve the attachment against the Norfolk Coal & Coke Co., in favor of the present plaintiffs. The condition of the recognizance is, in substance, that, if the company defendant in the foreign attachment proceeding shall be condemned, it will satisfy the condemnation money and costs; and, if it fails to do so, the surety will pay the same. Shortly after the judgment by default was taken in that case, but before the debt therein demanded or any part thereof had been paid, the said Norfolk Coal & Coke Co., defendant therein, appeared and upon giving the recognizance aforesaid, with the present defendant as surety, the attachment was dissolved. This was done pursuant to the 62d section of the act of June 13, 1836, P. L. 583, and the 2d section of the act of March 20, 1845, P. L. 189, the former of which provides : “ That if the defendant or defendants in the attachment, and every of them, shall, at any time before the money paid, put in and perfect bail, .... the attachment, and all proceedings had thereon as aforesaid, shall be dissolved, and the action shall proceed in due course, in like manner as if the same had been commenced by summons.” The proceedings thus “ dissolved,” by appearing and giving bail to the action, were the attachment, the judgment by default and the rule to open the same, etc. The recognizance was substituted for the property attached in the hands of the garnishee, and thereupon the proceeding'ceased ■ to be in rem. The plaintiffs had no further claim either upon the garnishee or the property attached, and thenceforth, in the language of the statute, the action should have proceeded in due course, in like manner as if the same had been commenced by summons. What was subsequently done with the rule to open the judgment by default, etc., is matter of no consequence. That rule, together with all other proceedings under the attachment, fell, or, in the language of the act, was “ dissolved ” the moment the attachment was dissolved by giving bail to the action. The case was then in a position for the plaintiffs to proceed and establish their claim against the original defendant. Theretofore it had not had its day in court as contemplated by the act. The attachment served on the garnishee, etc., had the effect of compelling it to appear and enter bail. This we think is the plain meaning of the act, and is in harmony with other provisions thereof which authorize the nonresident defendant in foreign attachment, after judgment against the garnishee, to come into court within a year and a day, disprove or avoid the debt recovered against him, or discharge the same with costs, and have restitution of the goods or effects, or the value thereof, attached and condemned, etc.

It follows therefore that the learned court was right in sustaining the demurrer to plaintiffs’ statement, and the judgment should not be disturbed.

Judgment affirmed.