Philadelphia & Reading R. R. v. Snowdon

28 A. 1067, 161 Pa. 201, 1894 Pa. LEXIS 666

• Court: Supreme Court of Pennsylvania
• Decided: April 16, 1894
• Docket: Appeal, No. 304
• Status: Published

Opinion

Per Curiam,

A judgment having been entered against the defendant for want of a sufficient affidavit of defence, the proper remedy of the defendant was by appeal and not by a motion to strike it off. We cannot go into the merits of the contention upon such a motion. Presumably that subject was duly considered by the court below before the judgment was entered. Under the procedure act of 1887 it is a grave question whether an affidavit of defence may not be required after the proceeding by foreign attachment has been converted into an action of assumpsit by a general appearance for the defendant. But whether it is or not the remedy is by appeal. Motions to strike off a judgment ordinarily are not allowed unless the record shows that the judgment was irregular or void.

The refusal of the court below to set aside the return to the writ of foreign attachment and to quash the writ is not a final judgment and is therefore not the subject of an appeal. The truthfulness of the sheriff’s return of service of the writ of foreign attachment cannot be inquired into in this proceeding' when the return is regular on its face as it is here. If the return was false the remedy is by an action for a false return.

Appeal quashed.