Develin v. Ford

19 Pa. Super. 381, 1902 Pa. Super. LEXIS 108

• Court: Superior Court of Pennsylvania
• Decided: January 21, 1902
• Docket: Appeal, No. 100
• Status: Published

Opinion

Opinion by

William W. Porter, J.,

This trial was had between Develin, the judgment creditor of Ford, and Grugan, garnishee, under an attachment sur judgment. On December 22, 1898, the attachment issued. It was shown that on the same day Develin took an assignment from Ford of his claim against Grngan, but whether before or after the issuance of the attachment does not appear from the record as furnished in the paper-book. The garnishee claims that the court should, as requested, have directed a verdict for the defendant, because the claim was, after the assignment, no longer in Ford, but in the plaintiff himself, and that therefore there was no debt which could be grasped by the writ. Were there rights of others than the parties to the issue affected by the assignment, the appellant’s position might be tenable. But the plaintiff was not estopped from treating his assignment as a nullity where neither the rights of the garnishee nor those of any third party were injuriously affected. The defendant in the judgment might possibly complain because of increase of costs. He, however, does not appear with any objection, but assisted the plaintiff by giving testimony in his behalf on the trial. The issue, so far as the garnishee was concerned, was only whether he was indebted under the facts shown. This issue was fully tried and the verdict went against him. Whether the amount found to be due goes to the plaintiff by virtue of his assignment or by virtue of the attachment, is of no moment to the garnishee. The judgment upon the verdict is itself an equitable assignment of the claim : Rushton v. Rowe, 64 Pa. 63. If the plaintiff intended to rely on his assignment, he should have sued Grugan thereon, or if he desired to rely on his attachment, he should have shown a cancelation of the assignment or a reassignment to Ford. In strictness the proceedings were irregular, but the real matter in dispute has been decided after a fair presentation of the facts in a form of issue which necessitates the conclusion that the plaintiff has relied, not upon his assignment, but upon his writ of attachment. To require further proceedings to determine the same issue between the same parties would result in a useless multiplication of actions to which the law lends no encouragement. This consideration moves us in the particular case, to direct that the judgment of the court below be and it hereby is affirmed. ,