LaBarre v. Doney , 53 Pa. Super. 435 ( 1913 )

Per Curiam,

It is argued that the assignment to the appellee, David Rosenthal, was of no validity because by reason of the pendency of exceptions to the exemption Doney had no interest in the fund which he could assign. It seems to us that this objection would apply with equal, if not greater force to the attachment. But as we view the agreement under which the assignee of the fund and the attaching creditor submitted the controversy between them to the common pleas, both must be deemed to have proceeded on the theory that the fund had been set apart to the bankrupt under his exemption claim and belonged to him. Upon no other theory could they invoke the jurisdiction of the state court. Having taken this position we are of opinion that the learned judge was right in assuming that the validity of the order of the referee in bankruptcy directing the fund in the hands of the trusted to be paid to Doney was not in question and that the substantial question which the parties desired to have decided was whether the assignment prevailed over the attachment. In the recent case of Phillips’ Est., No. 3, 205 Pa. 515, it was held after elaborate and thorough consideration of the question, that if an assignee failed to give notice to the person holding the fund assigned to him, a subsequent assignee without notice of the former assignment, will, upon giving notice of his assignment, acquire priority. This case is cited by appellant’s counsel as applicable here. We cannot assent to this view for two reasons: first, it was alleged in the petition to dissolve the attachment, and not denied, that a copy of the assignment was served on the trustee and another copy was mailed to the attorney of the appellant on the date of the assignment, which, was five days before the attachment issued; second, an attaching creditor necessarily claims through his debtor,

• and in the absence of fraud, can claim no greater right than was vested in the latter at the time the writ was served on the garnishee: Pellman v. Hart, 1 Pa. 263; Noble v. Thompson Oil Co., 79 Pa. 354; Hemphill v. Yerkes, 132 Pa. 545; Phillips’ Est., No. 4, 205 Pa. 525; Jarecki Mfg. Co. v. Hart, 5 Pa. Superior Ct. 422.

For the reasons above suggested, taken in connection with those set forth in the opinion of the learned judge of the common pleas, we think that he was right in concluding that Doney had nothing in the hands of the garnishee to attach, at the time the appellant’s attachment issued.

The order is affirmed at the costs of the appellant.