Schueck v. Freeman , 55 Pa. Super. 38 ( 1913 )

Opinion by

Rice, P. J.,

The plaintiff began an action of assumpsit against .the defendants by foreign attachment, and with his praecipe filed an affidavit of cause of action. This affidavit did not aver that the defendants were nonresidents of the state, nor that they were not within the county of Allegheny at the time the writ issued. After the writ had been returned served on the garnishee and nihil habet as to the defendants, the plaintiff, without leave of court, filed a second or supplemental affidavit identical with the original except for the addition of the words, “and that the defendants are not residents of the commonwealth of Pennsylvania.” Subsequently the defendants presented a petition to court, in which it was averred that “said affidavits of plaintiff’s cause of action ” (copies of which were attached as exhibits) “are vague and indefinite and do not set forth a good cause of action.” Thereupon the court granted a rule upon the plaintiff to show cause why the writ should not be quashed and the attachment dissolved. From the order making absolute this rule the plaintiff took the present appeal.

When the Supreme Court had nisi prius jurisdiction, it declared, as a rule of practice, that, if, upon hearing of a rule to show cause of action in foreign attachment, the plaintiff’s affidavit was found to be defective in substance, the court would not permit it to be amended or supplemented: Eldridge v. Robinson, 4 S. & R. 548. It has been suggested that this rule may be applicable here. We are. unable to adopt this suggestion. The second or supplemental affidavit was filed by the plaintiff before he was called upon to show cause of action, and, therefore, the case is neither within the letter nor the reason of the rule above cited. See Hallowell v. Tenney Canning Co., 16 Pa. Superior Ct. 60. But it is to be borne in mind that, while a detention of goods may not be so grievous as imprisonment of the body, yet there are cases in which it may do great injury, and even be ruinous, to the defendant. It is but reasonable, therefore, that the plaintiff, when called upon to do so, should make out a sufficient cause for the resort to this remedy, and leave nothing essential thereto to uncertain inference. Eldridge v. Robinson, 4 S. & R. 548. Accordingly, it was held in Hallowell v. Tenney Canning Co., 16 Pa. Super. Ct. 60, that the affidavit of cause of, action ought to set forth all the facts, jurisdictional and otherwise, constituting a cause of action in foreign attachment, and, upon reconsideration of the question, we are not convinced that this is not the true rule. Therefore, while the second or supplemental affidavit-could properly be read on the hearing of the rule, we are constrained to the conclusion that it is as defective as the first, in that it does not distinctly aver that the defendants were nonresidents of the commonwealth at the time of the issuing of the writ.

Another consideration is to be borne in mind. Upon the hearing of a rule to quash a foreign attachment, the court has jurisdiction to inquire into the question of residence, and to receive proof bearing thereon; and as, ordinarily, the facts are not brought on the record, the general rule is that the action of the court in quashing the writ is not reviewable: Holland v. White, 120 Pa. 228; First Nat. Bank of Omaha v. Crosby, 179 Pa. 63; Nicoll v. McCaffrey, 1 Pa. Superior Ct. 187. Perhaps it may be reviewable where all the facts are brought on the record in some legitimate way (Nicoll v. McCaffrey) and error of law or abuse of discretion appears. But, in view of the deficiencies of the plaintiff’s affidavits, to which we have alluded, as well as those in the statement of his demand, which are pointed out in the opinion of the learned judge below, we cannot say that it affirmatively appears by the record that the court committed etror of law or was guilty of abuse of discretion in quashing the writ.

The order is affirmed.