DocketNumber: Appeal, 316
Citation Numbers: 169 A. 778, 313 Pa. 510, 1934 Pa. LEXIS 417
Judges: Frazer, Simpson, Kephart, Sohaeeer, Maxey, Drew, Linn
Filed Date: 12/6/1933
Status: Precedential
Modified Date: 10/19/2024
Argued December 6, 1933. Plaintiffs, on December 28, 1931, to recover for a tort, obtained a writ of foreign attachment, returnable first Monday in March, 1932. The sheriff returned nihil habet as to defendant, that he had attached the real estate described in the præcipe, and had served Frank J. Coll and Joseph Lekiela, tenants in possession. No affidavit of cause of action was filed. With their præcipe for the writ, plaintiffs also filed a statement of claim.1
On August 22, 1932, a general appearance was entered for the defendant; the garnishees have not appeared. April 4, 1933, defendant, by petition, obtained a rule to show cause why the writ "should not abate and the lien of attachment on the property of the defendant in the hands of the garnishees should not cease and the proceedings be dissolved and ended." The petition alleges that the writ issued without an affidavit of cause of action; *Page 512
that the statement of claim, filed with the præcipe for the writ, cannot be treated as the required affidavit, because it contains no averment that defendant is nonresident, or absent from the county and seized of property here (Morinelli v. Garin Co.,
The essential averments required in an affidavit of cause of action to sustain foreign attachments (Mindlin v. Saxony Spinning Co.,
An affidavit of cause of action need not be filed with the præcipe for the writ, unless defendant is "any person who being a resident of this Commonwealth shall have moved therefrom after having become liable in an action ex delicto." Act of April 24, 1931, P. L. 44, 12 P. S., section 2891, a substitute for the Act of May 15, 1874, P. L. 183, 12 P. S., sections 2893-4 (which, for the first time, authorized foreign attachment in actions ex delicto, by amending section 44 of the general Act of June 13, *Page 513 1836, P. L. 568), and the Act of June 21, 1911, P. L. 1097, 12 P. S., section 2891.
In other cases, if a defendant desires plaintiff to show cause of action, he may appear specially and obtain a rule to show cause. (See Act of March 5, 1925, P. L. 23, section 1, 12 P. S., section 672.) The Act of May 12, 1897, P. L. 62, section 1, 12 P. S., section 2961, requires a plaintiff "within one year after the issuance of the writ [to] file a statement of his or their cause of action," which means a formal statement of claim. See Pottash v. Hartenfeld Bag Co.,
The purpose of seizing property by writ of foreign attachment is to compel appearance: Rankin v. Culver et al.,
Before defendant appeared, she had opportunity to elect one of several possible courses. She might have dissolved the writ of attachment by entering security, in which case the action would have proceeded, the bail taking the place of the attached property; or, desiring not to enter security and substitute a bond for the property, she could enter a general appearance, and, as the statute provided, "take defense to the action," which then would "proceed as if commenced by a summons." *Page 514
On the choice of this course, however, the legislature imposed a condition in the following words: "but the attachment shall nevertheless continue to bind the estate or the effects attached as in other cases unless. . . . . .," supra. This defendant, instead of substituting security for the attached property and proceeding in personam, chose another course, at the price, however, of submitting to the attachment pendente lite. A third course had also been open to her election: before deciding to give bail and dissolve the attachment, or to permit the attachment to stand and enter a general appearance, she might, if in doubt about the jurisdiction, have proceeded by rule to show cause to require plaintiffs to file the necessary affidavit. As this affidavit of cause of action goes to the propriety of issuing the writ, its requirement may be waived by electing either of the other statutory courses referred to. Defendant's choice of procedure continued the attachment, leaving no occasion to require plaintiffs to show cause of action, because the statute has rendered it unnecessary. See Pottash v. Albany Oil Co.,
Even in the absence of such statutory provision, it is held that a general appearance waives the right to object to the sufficiency of the affidavit on which process has been issued, following the fundamental rule that a general appearance acts as a waiver of all defects in process, service, etc.: Schenley v. City of Allegheny,
The order appealed from is reversed and the record is remitted with a procedendo.
Morinelli v. H. P. Garin Co. , 1930 Pa. Super. LEXIS 106 ( 1930 )
Schenley v. Commonwealth ex rel. City of Allegheny , 36 Pa. 29 ( 1859 )
McLeod v. Hyman , 272 Pa. 582 ( 1922 )
Pottash v. Albany Oil Co. , 274 Pa. 384 ( 1922 )
Mindlin v. Saxony Spinning Co. , 261 Pa. 354 ( 1918 )
Pottash v. Hartenfeld Bag Co. , 267 Pa. 96 ( 1920 )