Wallace v. Scholl , 9 Pa. Super. 284 ( 1899 )

Opinion by

Smith, J.,

This action of assumpsit was commenced April 22, 1897, by a writ of foreign attachment returnable the second Monday of May, which was duly served on one garnishee April 23, and on another May 1, 1897. Judgment was entered against the defendant September 20, 1897, for want of an appearance and answer. On application, the same day, the court granted a rule to show cause why the attachment should not be quashed and the judgment opened and set aside. On November 29 the rule was discharged. There are six terms of court each year, commencing the second Mondays of January, March, May, July, September and November, and this action was brought to the May term.

It was contended here, on two grounds, that the court erred in discharging the rule: First, that the judgment was prematurely entered, and second, that the writ should have been quashed because no bail was inserted in the praecipe or indorsed on the writ or the record. By the 53d section of the act of 1836, it is provided that “ it shall be lawful for the plaintiff at and after the third term of court after the execution of the writ, if he shall have filed his declaration, to take judgment against the defendant for default of appearance, unless the attachment before that time be dissolved.” This was afterward modified as to the time of filing the declaration, but the modification does not affect the present case. In support of the first ground of complaint it is argued that “ the writ was not fully executed until the return was made on the return day: .... that in contemplation of law the return day is the time of the execution of the writ,” and, therefore, the defendant was entitled to two full terms after the May term, in which to appear and prevent judgment by default. The argument is obscure, due evidently to a confusion of terms and a misunderstanding of what constitutes “the execution of a writ,” “ the return of a writ,” and the time when return should be made. The return of a writ is no part of its execution, no matter when made. “To execute a writ is to do the act commanded in the writ: ” Bouvier. The officer is given until the return day to execute process, and is then required to inform the court how he performed his duty. But the return is no part of the execution of the writ. It is simply an account or report of the manner of its execution, rendered to the court whence it issued and is usually indorsed thereon. This return of the writ is made when nothing has been done toward its execution as well as when its mandate has been obeyed; and becomes important to explain or excuse its nonexecution. An official return of process is prima facie proof of- the manner of its execution, and is often made after as well as before the return day. But it is descriptive of that act only. A writ executed but not returned may be shown, by other evidence, to have been duly executed: Smull v. Mickley, 1 Rawle, 95; Hinds v. Scott, 11 Pa. 19; Gibson v. Winslow, 38 Pa. 49; Kelly v. Green, 53 Pa. 302. The act of June 13, 1836, sec. 48, expressly states how “ the attachment shall be executed.” According to the sheriff’s return the acts required by the statute to constitute an execution of the attachment had been performed and completed on May 1. It is clear, therefore, that the writ in the present case was duly executed before the commencement of May term, and the judgment was properly entered at the September term, which was the third term after such execution.

The other objection raised “that no bail was inserted in the praecipe or indorsed on the writ or the record,” is sufficiently disposed of in the opinion of the learned court below, discharging the rule: “ Conceding that this omission is a departure from the almost universal practice, we cannot see how the defendant has been prejudiced by it. It did not deprive the defendant of the privilege of entering bail in such sum as the court or judge might name, and it is safe to say that this sum would not exceed the sum named, by at least a malicious plaintiff. Indeed, the practice of stating the amounts of bail demanded in the praecipe seems to be rather for the protection of plaintiffs, than- of defendant. When the amount is thus stated and indorsed on the writ, it is notice to the judge not to accept bail in a less amount without notice to the plaintiff, which is probably the reason of the practice.” It is nowhere alleged that the defendant offered to enter bail or desired to do so; and as the learned judge said no injury accrued.

Judgment affirmed.