Rouss v. Gilliam

Superior Court of Pennsylvania

Rouss v. Gilliam

70 Pa. Super. 594, 1919 Pa. Super. LEXIS 16

CourtSuperior Court of Pennsylvania

DecidedJanuary 3, 1919

DocketAppeal, No. 127

StatusPublished

This text of 70 Pa. Super. 594 (Rouss v. Gilliam) 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

Rouss v. Gilliam, 70 Pa. Super. 594, 1919 Pa. Super. LEXIS 16 (Pa. Ct. App. 1919).

Pincite

Opinion

Opinion by

Kephart, J.,

An order of the court dissolving, or refusing to dissolve, an attachment under the Act of March 17, 1869, P. L. 9, as amended by the Act of May 24, 1887, P. L. 197, is interlocutory from which an appeal will not lie: Slingluff, Johns & Co. v. Sisler, 193 [597]*597Pa. 264-268. The appeal in the present case is in the nature of a certiorari, and if it could be entertained, the evidence is not before us. Our examination is limited solely to the regularity of the proceeding as shown by the record: Wetherald v. Shupe, 109 Pa. 389; Hoppes v. Houtz, 133 Pa. 34; Lafferty v. Corcoran, 175 Pa. 5; Hall v. Oyster, 168 Pa. 399; Moss v. Mitchell Bros., 174 Pa. 517; Slingluff, Johns & Co. v. Sisler, supra. If from the opinion filed, it might appear that the court below proceeded upon an erroneous conception of the law as applied to the evidence and in so doing abused the discretion lodged in it by the sixth section of the Act of March 17, 1869, we might consider some of the questions presented, but, as stated in Slingluff, Johns & Co. v. Sisler, supra: “The exception in case of an abuse of discretion will not be applicable here because there is nothing before us to show that there was any abuse of discretion.” It may be noticed that in dissolving an attachment, it is a final determination of the particular inquiry then before the court. Through it the plaintiff is compelled to relinquish his grasp on personal property and may never again be able to recover it. The order dissolving the attachment may be the act which effectively deprives him of the payment of his claim as the defendant may successfully dispose of his property. However, in passing, we may observe from the record of the proceedings the writ issued April 13, 1916, and the defendant died July 16, 1916. The plaintiff did not file his statement until April 17, 1917. Where possession has been taken, by the sheriff, of the defendant’s goods in an attachment under the Act of 1869 and its amendments, and the plaintiff does not file his statement of claim for more than a year after the attachment issued, the court does not abuse its discretion in dissolving the attachment because of the plaintiff’s laches in failing to vigorously prosecute the case. This is the rule unless some very good reason appears for the plaintiff’s failure to file his statement. The purpose of an attachment under this [598]*598act and its amendments is to secure to creditors the property of debtors who are about to move such property out of the jurisdiction of the court, or who are about to assign, dispose of, or otherwise get rid of their property with intent to defraud creditors. The attachment is in the nature of an ancillary writ to the commencement of an action by summons for debt regularly issued and served. It is like an ordinary summons with a clause of attachment as a part of it and it enables the plaintiff to get judgment and seize the property by execution unless his debt is paid. But the plaintiff’s debt, as averred in the statement, has not been liquidated until a judgment has been entered and it may be through some defense on the merits that he would not be entitled to anything. The writ cannot be used to oppress the defendant, and while the act directs that the proceeding should follow that of a summons for debt, it places it in the hands of the court to dissolve the attachment for cause shown. Failure to promptly prosecute an attachment issued under this act would be sufficient cause to dissolve it. The determination of this question rests in the sound discretion of the judge hearing the case. The docket entries show that the attachment was served after the defendant died, and while certain papers correcting this have since the argument been presented to the court, they are not a part of the record and could not become a part of it unless the record was returned to the court below and amended as prayed for in the petition. With this done we would not change our determination on the question before us.

The appeal is dismissed at the cost of the appellant.

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Opinion by

Kephart, J.,

An order of the court dissolving, or refusing to dissolve, an attachment under the Act of March 17, 1869, P. L. 9, as amended by the Act of May 24, 1887, P. L. 197, is interlocutory from which an appeal will not lie: Slingluff, Johns & Co. v. Sisler, 193 [597]*597Pa. 264-268. The appeal in the present case is in the nature of a certiorari, and if it could be entertained, the evidence is not before us. Our examination is limited solely to the regularity of the proceeding as shown by the record: Wetherald v. Shupe, 109 Pa. 389; Hoppes v. Houtz, 133 Pa. 34; Lafferty v. Corcoran, 175 Pa. 5; Hall v. Oyster, 168 Pa. 399; Moss v. Mitchell Bros., 174 Pa. 517; Slingluff, Johns & Co. v. Sisler, supra. If from the opinion filed, it might appear that the court below proceeded upon an erroneous conception of the law as applied to the evidence and in so doing abused the discretion lodged in it by the sixth section of the Act of March 17, 1869, we might consider some of the questions presented, but, as stated in Slingluff, Johns & Co. v. Sisler, supra: “The exception in case of an abuse of discretion will not be applicable here because there is nothing before us to show that there was any abuse of discretion.” It may be noticed that in dissolving an attachment, it is a final determination of the particular inquiry then before the court. Through it the plaintiff is compelled to relinquish his grasp on personal property and may never again be able to recover it. The order dissolving the attachment may be the act which effectively deprives him of the payment of his claim as the defendant may successfully dispose of his property. However, in passing, we may observe from the record of the proceedings the writ issued April 13, 1916, and the defendant died July 16, 1916. The plaintiff did not file his statement until April 17, 1917. Where possession has been taken, by the sheriff, of the defendant’s goods in an attachment under the Act of 1869 and its amendments, and the plaintiff does not file his statement of claim for more than a year after the attachment issued, the court does not abuse its discretion in dissolving the attachment because of the plaintiff’s laches in failing to vigorously prosecute the case. This is the rule unless some very good reason appears for the plaintiff’s failure to file his statement. The purpose of an attachment under this [598]*598act and its amendments is to secure to creditors the property of debtors who are about to move such property out of the jurisdiction of the court, or who are about to assign, dispose of, or otherwise get rid of their property with intent to defraud creditors. The attachment is in the nature of an ancillary writ to the commencement of an action by summons for debt regularly issued and served. It is like an ordinary summons with a clause of attachment as a part of it and it enables the plaintiff to get judgment and seize the property by execution unless his debt is paid. But the plaintiff’s debt, as averred in the statement, has not been liquidated until a judgment has been entered and it may be through some defense on the merits that he would not be entitled to anything. The writ cannot be used to oppress the defendant, and while the act directs that the proceeding should follow that of a summons for debt, it places it in the hands of the court to dissolve the attachment for cause shown. Failure to promptly prosecute an attachment issued under this act would be sufficient cause to dissolve it. The determination of this question rests in the sound discretion of the judge hearing the case. The docket entries show that the attachment was served after the defendant died, and while certain papers correcting this have since the argument been presented to the court, they are not a part of the record and could not become a part of it unless the record was returned to the court below and amended as prayed for in the petition. With this done we would not change our determination on the question before us.

The appeal is dismissed at the cost of the appellant.

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Bluebook (online)

70 Pa. Super. 594, 1919 Pa. Super. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rouss-v-gilliam-pasuperct-1919.

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