Klein v. Gaston De Paris, Inc.

Superior Court of Pennsylvania

Klein v. Gaston De Paris, Inc.

100 Pa. Super. 357, 1930 Pa. Super. LEXIS 82

CourtSuperior Court of Pennsylvania

DecidedNovember 11, 1930

DocketAppeal 396

StatusPublished

This text of 100 Pa. Super. 357 (Klein v. Gaston De Paris, Inc.) 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

Klein v. Gaston De Paris, Inc., 100 Pa. Super. 357, 1930 Pa. Super. LEXIS 82 (Pa. Ct. App. 1930).

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Opinion

Opinion by

Baodrige, J.,

The plaintiff in his cause of action averred that the defendant, a foreign corporation, “has property and choses in action located in the State of Pennsylvania.'’’

We regard the averment as fatally defective, not, however, for the failure to aver that the defendant had no agent within the Commonwealth upon whom process could be served, which was the view taken by the learned court below. A resident of another state who has an agent or clerk in his place of business in this Commonwealth is not exempt from process of foreign attachment (Chase v. The Ninth National Bank of New York, 56 Pa. 355); therefore, it is not a jurisdictional fact which must be alleged. ■ But the plaintiff must aver the presence of the' defendant’s property, real or personal, within the county at the time of the issuance of the writ, or if it is intangible property, that there is money, choses in action, etc., of the defendant in the possession of, or due or owing *359 to it by, someone capable of being summoned as garnishee within the county. The omission to set forth these indispensable facts is fatal to the proceeding.

See opinion filed this day in the case of Morinelli v. H. P. Garin Company and Market Street National Bank, garnishee.

Order affirmed.

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Opinion by

Baodrige, J.,

The plaintiff in his cause of action averred that the defendant, a foreign corporation, “has property and choses in action located in the State of Pennsylvania.'’’

We regard the averment as fatally defective, not, however, for the failure to aver that the defendant had no agent within the Commonwealth upon whom process could be served, which was the view taken by the learned court below. A resident of another state who has an agent or clerk in his place of business in this Commonwealth is not exempt from process of foreign attachment (Chase v. The Ninth National Bank of New York, 56 Pa. 355); therefore, it is not a jurisdictional fact which must be alleged. ■ But the plaintiff must aver the presence of the' defendant’s property, real or personal, within the county at the time of the issuance of the writ, or if it is intangible property, that there is money, choses in action, etc., of the defendant in the possession of, or due or owing *359 to it by, someone capable of being summoned as garnishee within the county. The omission to set forth these indispensable facts is fatal to the proceeding.

See opinion filed this day in the case of Morinelli v. H. P. Garin Company and Market Street National Bank, garnishee.

Order affirmed.

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Bluebook (online)

100 Pa. Super. 357, 1930 Pa. Super. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-gaston-de-paris-inc-pasuperct-1930.

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