Dougherty v. Thayer

Supreme Court of Pennsylvania

Dougherty v. Thayer

78 Pa. 172, 1875 Pa. LEXIS 114

DecidedMarch 29, 1875

StatusPublished

This text of 78 Pa. 172 (Dougherty v. Thayer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dougherty v. Thayer, 78 Pa. 172, 1875 Pa. LEXIS 114 (Pa. 1875).

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Opinion

Judgment was entered in the Supreme Court, March 29th 1875,

Pee Curiam.

The 56th section of the act relating to foreign attachments makes it the duty of the court, after filing interrogatories “ upon the motion of the plaintiff to grant a rule upon the garnishees to appear,” &c., to make answer. It is not said the motion shall be in open court. It is, therefore, a motion which the court may regulate by its standing order, under the power con[174]*174ferred in the 21st section of the Act of 16th June 1836 (Brightly 233, pi. 136), to regulate the practice of the court, and expedite business. How the motion shall be made is a matter of practice merely. The rule on the garnishee to answer is of right and not of discretion. It is therefore in the power of the court to prescribe the practice by a standing order, that on filing the praecipe for the rule in the prothonotary’s office, the rule on the garnishee shall issue as of course. A general rule is a standing order to accept the motion, and grant it whenever asked for in a prescribed form of practice. There is no inconsistency between rule and the law in this instance. Had the law said the motion should be made in open court, the case would have been different; for then the court could accept the motion only in open court, and not in the office. We perceive no error in this case.

Judgment affirmed.

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Judgment was entered in the Supreme Court, March 29th 1875,

Pee Curiam.

The 56th section of the act relating to foreign attachments makes it the duty of the court, after filing interrogatories “ upon the motion of the plaintiff to grant a rule upon the garnishees to appear,” &c., to make answer. It is not said the motion shall be in open court. It is, therefore, a motion which the court may regulate by its standing order, under the power con[174]*174ferred in the 21st section of the Act of 16th June 1836 (Brightly 233, pi. 136), to regulate the practice of the court, and expedite business. How the motion shall be made is a matter of practice merely. The rule on the garnishee to answer is of right and not of discretion. It is therefore in the power of the court to prescribe the practice by a standing order, that on filing the praecipe for the rule in the prothonotary’s office, the rule on the garnishee shall issue as of course. A general rule is a standing order to accept the motion, and grant it whenever asked for in a prescribed form of practice. There is no inconsistency between rule and the law in this instance. Had the law said the motion should be made in open court, the case would have been different; for then the court could accept the motion only in open court, and not in the office. We perceive no error in this case.

Judgment affirmed.

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Bluebook (online)

78 Pa. 172, 1875 Pa. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dougherty-v-thayer-pa-1875.