Dempsey v. Petersburg Savings & Insurance

Superior Court of Pennsylvania

Dempsey v. Petersburg Savings & Insurance

26 Pa. Super. 633, 1904 Pa. Super. LEXIS 370

CourtSuperior Court of Pennsylvania

DecidedDecember 12, 1904

DocketAppeal, No. 160

StatusPublished

Cited by3 cases

This text of 26 Pa. Super. 633 (Dempsey v. Petersburg Savings & Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dempsey v. Petersburg Savings & Insurance, 26 Pa. Super. 633, 1904 Pa. Super. LEXIS 370 (Pa. Ct. App. 1904).

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Opinion

Per Curiam,

This is an action of assumpsit begun by foreign attachment. In response to a rule to show cause of action and to dissolve, the plaintiffs filed an affidavit of cause of action, the sufficiency of which is not questioned. Subsequently the garnishee obtained a rule to quash the attachment, which rule was based on an affidavit denying the contractual liability alleged in the plaintiffs’ affidavit. The court discharged the rule to dissolve and the rule to quash, and also refused the garnishee’s motion for leave to take depositions in support of the latter rule. These are the matters assigned for error.

In Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, after pointing out the distinction between a motion to dissolve and a motion to quash, we said: “ But it is now too well settled by precedent to permit discussion, that the court has power to quash a writ of foreign attachment upon proof of facts which are not disclosed by the record, as for example, that the defendant is a resident of the state or that the property is not liable to foreign attachment.” But no such facts were alleged here. The issue raised by the two conflicting affidavits was as to the very merits of the plaintiffs’ claim, not as to any fact essential to their right to sue in assumpsit for the recovery of the debt demanded, and to issue a writ of foreign attachment to compel the defendant’s appearance to the action. We are all of opinion that the court was clearly right in refusing to try and determine that issue in this summary manner.

The distinction between a motion to quash upon the ground that the defendant is a resident of the state, or that the property is not such as is liable to attachment, and a motion to quash based on the garnishee’s affidavit that the defendant does not owe the debt demanded, was recognized in the case above cited, and more distinctly pointed out in the cases therein referred to. Moreover, the refusal to quash the writ was not a [635]*635final judgment, and is therefore not the subject of an appeal: Bellah v. Poole, 202 Pa. 71, and cases there cited.

Appeal quashed at thé appellants’ cost, and record remitted with a procedendo.

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Per Curiam,

This is an action of assumpsit begun by foreign attachment. In response to a rule to show cause of action and to dissolve, the plaintiffs filed an affidavit of cause of action, the sufficiency of which is not questioned. Subsequently the garnishee obtained a rule to quash the attachment, which rule was based on an affidavit denying the contractual liability alleged in the plaintiffs’ affidavit. The court discharged the rule to dissolve and the rule to quash, and also refused the garnishee’s motion for leave to take depositions in support of the latter rule. These are the matters assigned for error.

In Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187, after pointing out the distinction between a motion to dissolve and a motion to quash, we said: “ But it is now too well settled by precedent to permit discussion, that the court has power to quash a writ of foreign attachment upon proof of facts which are not disclosed by the record, as for example, that the defendant is a resident of the state or that the property is not liable to foreign attachment.” But no such facts were alleged here. The issue raised by the two conflicting affidavits was as to the very merits of the plaintiffs’ claim, not as to any fact essential to their right to sue in assumpsit for the recovery of the debt demanded, and to issue a writ of foreign attachment to compel the defendant’s appearance to the action. We are all of opinion that the court was clearly right in refusing to try and determine that issue in this summary manner.

The distinction between a motion to quash upon the ground that the defendant is a resident of the state, or that the property is not such as is liable to attachment, and a motion to quash based on the garnishee’s affidavit that the defendant does not owe the debt demanded, was recognized in the case above cited, and more distinctly pointed out in the cases therein referred to. Moreover, the refusal to quash the writ was not a [635]*635final judgment, and is therefore not the subject of an appeal: Bellah v. Poole, 202 Pa. 71, and cases there cited.

Appeal quashed at thé appellants’ cost, and record remitted with a procedendo.

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26 Pa. Super. 633, 1904 Pa. Super. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-petersburg-savings-insurance-pasuperct-1904.

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