Bohan v. Reap , 7 Pa. Super. 167 ( 1898 )

Opinion by

Rice, P. J.,

This is an appeal from an order refusing to quash an attachment execution upon the motion of the defendant. Passing the question whether an appeal lies from such an order prior to the entry of final judgment in the attachment proceeding, we find no error in the ruling of the court below.

Section 2 of the Act of June 16, 1836, P. L. 755, provided that no execution should issue after the expiration of a year and a day from the first day of the term in which judgment was entered, or, if there was a stay of execution, from the expiration of such stay, unless the party against whom it was rendered should be first warned by writ of scire facias to show cause why an execution should not issue. This was amended by section 4 of the Act of April 16, 1845, P. L. 538, which provided that “ it shall not be deemed error to issue any writ of execution on a judgment, in any court, which has not been revived within a year and a day, if the same have been revived within five years.”

A difference -of opinion existed in the courts of common pleas as to whether it was lawful under any circumstances to issue a fi. fa. on a judgment more than five years old which had not been revived. Some of the courts held that no change was made in the practice that had grown up under the common law, and, therefore, that it was lawful, if a previous fi. fa. had been issued within five years (1 T. & H. Prac. secs. 1043, 2073), while others held that it was not: Comstock v. Kilchenstein, 14 W. N. 388. It is altogether probable, as Judge Abnold says in Sweeting v. Wanamaker, 4 Dist. Rep. 246, that this dispute was one of the considerations which led to the passage of the Act of May 19, 1887, P. L. 132. Another purpose, more plainly apparent, was to meet objections that had been raised to the issuing of a fi. fa. upon a judgment more than five years old prior to the entry of judgment upon the sci. fa. to revive, (Harmony B. Assn. v. Berger, 14 W. N. 499), and to permit both writs to go out at the same time when the purpose was to sell personal property only. But so far as attachment executions are concerned the act gives no right which was not recognized before, and we are unable to conclude that the intention was to curtail any such right or to regulate its exercise.

In the first place the language of the act is not more imperative than that of the act of 1836 or of the act of 1845, and upon the latter acts we have authoritative decisions, which so far as I know have never been questioned, holding that an attachment execution may issue after the expiration of the specified period, notwithstanding there was no previous revival of the judgment: Ogilsby v. Lee, 7 W. & S. 444; Gemmill v. Butler, 4 Pa. 232. And see Swanger v. Snyder, 50 Pa. 218. These cases are very fully abstracted in the opinion rendered by the learned judge of the court below, and we need not refer to them further, except to say that the reasoning of the decisions is equally pertinent and conclusive in construing the act of 1887.

In the second place the language of the provision that “ in case the defendant .... in said writs file an affidavit alleging a just and legal defense against the revival of said judgment it shall be lawful for the court or a judge thereof in vacation to stay the writ of fieri facias,” etc. is not without significance. It is some evidence that the only writ which the legislature had in mind was the writ of fieri facias. True, it was unnecessary to provide specially for a sta3r in the case of a writ of attachment, but this was because, (as was said in Ogilsby v. Lee), the defendant may appear and become a party, and plead payment or any other plea which he might take advantage ot' upon a sci. fa. post annum et diem. Hence the argument from the exclusive reference to the writ of fi. fa. is not weakened but rather strengthened. It is not to be supposed that the legislature intended to give the defendant two opportunities to show cause why the plaintiff should not have the advantage of his judgment.

Again, the title of the act only gives notice of legislation concerning executions issued “ for the purpose of selling personal property of the debtor,” and, surely it cannot be contended that legislation concerning executions generally would be permissible under such a restrictive title. An attachment, it is true, is execution process, but it is not accurate to speak of it as an execution for the sale of personal property. As the learned judge of the common pleas well says: “ Under it the sheriff has no power to sell, he simply warns, and attaches the property of the defendant.” It is not to be presumed that the legislature intended to legislate upon a subject not clearly expressed in the title; hence it is that the title may always be looked to for aid in the construction of the statute. “However it was in England, where the title is held to be no part of a statute, indeed was commonly framed by the clerk of Parliament after the bill had passed, without any vote being taken upon it, certainly, since the first amendment of the constitution adopted in 1864, art. XI, sec. 8, it is now necessarily a part of the act, and a very important guide to its right construction: ” Eby’s Appeal, 70 Pa. 311. “The subject of the act is expressed in the title; this is essential; the title is a part of the act and aids, if need be, in its construction; and if there were any provision foreign to the subject named it would be void: ” Halderman’s Appeal, 104 Pa. 251. “ The title of an act is part of it; it limits its scope, and is properly used in interpreting its words : ” Perkins v. Philadelphia, 156 Pa. 554, citing Pa. R. R. Co. v. Riblet, 66 Pa. 164. See further, Sanderson’s Validity of Statutes, pp. 6-13, and cases there cited. A legislative intent to violate the constitution is never to be assumed, if the language of the statute can be satisfied by a contrary construction, and we are clearly of opinion that it can be satisfied in the present instance by restricting it to writs for the sale of personal property and leaving the practice, so far as attachment executions are concerned, undisturbed. The manifest difference between such writ and the writ provided for the enforcement of judgments against school districts prevents any analogy being drawn between the present case and O’Donnell v. Cass School Dist., 133 Pa. 162. That writ is an imperative command, while under an attachment execution the defendant has an opportunity to make any defense he could to a sci. fa. Neither the decision itself, nor anything that is said in the opinion conflicts in the slightest degree with the rulings in Ogilsby v. Lee, and Gemmill v. Butler.

For the foregoing reasons, in connection with those stated in the able opinion of the learned judge of the court below, we hold, that there was no irregularity in the issuing of the attachment which entitled the defendant to have it quashed.

Tbe order discharging the rule to show cause why the writ of attachment should not be quashed is affirmed, and the appellant is directed to pay the costs.