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Paragraphs eighteen and twenty of Jones, J., Jan. 14, 1924–Summons in the counter claim, however, are clearly assumpsit and judgment in favor of the open to the objection that they set forth plaintiff and against the defendant, in delumping charges and claims for damages, fault, in the sum of $50.

, without properly itemizing the same or Same day execution issued and regiving in sufficient detail the facts upon turned nulla bona, and two days therewhich they are based, as is required by after attachment execution issued, served the Practice Act of 1915.

upon defendant personally and upon

Mount Lookout Coal Company, garThis requirement of the statute has nishee, who made answer that it was in

debted to defendant in the sum of $22.74 been enforced by the courts with equal for wages of labor, denying the right of strictness against both defective state- plaintiff to have execution against the ments and defective counter claims, and garnishee, for the reason that the Act of is conclusive of this case: Gross v. Exe- May 8, 1876, P. L. 139, and its suppleter Machine Works, 277 Pa. 363 ; Davis, ments, April 10, 1905, P. L. 134, and Director General of Railroads, v. Smutz-III, section 7, of the Constitution, being

May 1, 1913, P. L. 132, violate article inger, 281 Fed. 640; Phila. Storage Bat- special legislation. tery Co. v. Air Reduction Sales Co., 274

These acts provide for the commenceFed. 216-218.

ment of suits and actions by attachment And now, to wit, October 20th, 1924: of the peace to recover pay for boarding

before magistrates, aldermen or justices The affidavit of defense and defendant's and lodging and to attach wages due or counter claim are stricken off, with owing such persons. leave to file others within fifteen days

These acts have been declared unconafter the filing of this opinion.

stitutional, as being in conflict with article III, section 7, of the Constitution, which forbids special legislation changing the methods for the collection of debts: Jenkins v. Davis, 18 Dist. R. 928; Antreason v. Samarsien, 18 Dist. R. 335;

Schmidt v. Schmidt et al., 24 Lacka. Shapris v. Paskawitch

Jurist, 108.

This suit was not instituted under any of these acts, but was proceeded with in

the usual way by summons, hearing, Practice, I. P.-Attachment execution judgment, execution, return of “no --Judgment--oct of April 15, 1845.

goods," and then an attachment execu

tion under the Act of April 15, 1845, P. Section 5 of the Act of April 15, 1845, P. L. 459, provides that in an action proceeded with in the usual way by summons, hearing,

Section 5 of this act provides that if judgment, execution, return of no goods” the garnishee in his answers admit that

attachment execution if the garnishee admits possession or control of there is in his possession or control proproperty of the defendant, judgment may be perty of the defendant liable under said entered specially to be levied out of the effects in the hands of the garnishee, or so act to attachment, then said magistrate much of the same as may be necessary to may enter judgment specially to be levied pay the debt and costs.

out of the effects in the hands of the garJudgment against the garnishee generally nishee, or so much of the same as may is not in compliance with the act, and will be reversed upon certiorari.

be necessary to pay the debt and costs. Certiorari.

The garnishee in its answers admitted

the sum of $22.74 in its possession or John R. W’ilson, for garnishee. control, property of the defendant.

C. P. of

Luzerne Co.

L. 459.

and then an

In such case the act provides that the cipe directing that a writ of foreign atmagistrate may enter judgment specially. tachment issue against the defendant, at

In this case the magistrate entered taching his property in the possession of judgment generally against the garnishee. plaintiff also filed an affidavit of cause of This was not in compliance with the act. action. In Longwell v. Hartwell, 164 Pa. 533,

The proceedings of foreign attachment it was said: "The proper form of the proceed in regular course until Jan. 12, judgment is for plaintiff against the garnishee, and that the garnishee has in his !923, when an appearance was entered hands certain goods, effects or credits, to Fruit & Anderson, his attorneys.

in behalf of the defendant by Davis, wit (naming them), of the calue, etc., or that the garnishee is indebted to the de- On June 18, 1923, the plaintiff prefendant in the sum of, etc.”

sented a motion for judgment against the

defendant for the reason that no affidaIn Layman v. Beam, 6 Wharton, 181, vit of defence had been filed by the dethe proper form of a judgment was given fendant after the entry of appearance,

a as follows: "That plaintiff have execu- whereupon the court made an order dition of so much of the debt, etc., due by recting judgment to be entered by the garnishee to defendant, and attached in his hands, as may satisfy the judgment want of an affidavit of defence.

prothonotary for the amount claimed for of plaintiff against the said defendant.”

The defendant soon thereafter preFor the reasons herein stated, the pro- sented a petition to strike off the judgceedings of the magistrate are reversed.

ment. The reason alleged in the petition for striking off the judgment is as follows:

“All of the original papers and docket

entries fail to show that the plaintiff filed C. P. of

a declaration or a statement of claim

either before or after the defendant enMcBride v. Bartol et al.

tered an appearance.

"The defendant, therefore, represents

that the judgment is void and invalid, beForeign attachment Statement of cause it was incumbent upon the plain

tiff to file a declaration or statement of claim Affidavit of defence - Striking claim before judgment could be awarded off judgment-Practice, C. P.

for failure on the part of the defendant

to file an affidavit of defence.” In foreign attachment proceedings, judg

It is admitted that no affidavit of dement cannot be entered for want of an affidavit of defence if no declaration or state-fence had been filed, and it must be conment of claim has been filed.

ceded that, inasmuch as no affidavit of The affidavit of cause of action is merely defence had been filed, the plaintiff was a part of the proceeding to bring the defendant into court, and is not a substitute for entitled to judgment, provided the plainthe statement of claim, which is an essential tiff had fully complied with the requirepart of the proceedings in the action of assumption to determine whether or not the ments of the law in the prosecution of plaintiff is entitled to judgment.

his suit. Petition to strike off judgment.

"Where a general appearance has been

entered by the defendant in an action of C. E. Brockwell, for plaintiff.

assumpsit and begun by foreign attachDavis, Fruit & Anderson, for defend him for want of an affidavit of defence:”

ment, judgment may be taken against ant.

Railroad Co. v. Snowdon, 166 Pa. 236. McLaughry, P. J., Feb. 29, 1924.-On The defendant, however, alleges that, June 15, 1922, the plaintiff filed a præ-'even though no affidavit of defence had

Mercer Co.

ance.

been filed by the defendant, the plaintiff whether the affidavit be defective or wrongfully took judgment, for the rea- whether there be no affidavit at all. The son that the plaintiff had not previously object of a writ of foreign attachment is filed a declaration or statement of claim, to compel an appearance, and when this which it was incumbent upon him to do. is secured, the suit then proceeds as if This, the plaintiff alleges, was done, commenced by a summons. and the requirements of the law fully

Foreign attachment is but a process by complied with in the filing of the affida- which to commence a personal action, vit when the præcipe was issued on June It seizes property to compel an appear15, 1922.

The affidavit is a part of the proThe whole question, then, is as to cess of foreign attachment. The declarwhether or not the said affidavit is such ation or statement of claim and the affia declaration as to fulfill the require- davit of defence constitute part of the ments of the law.

proceedings in the action of assumpsit Foreign attachment, as defined by our to determine whether or not the plaintiff Supreme Court, "is a proceeding in rem, in his suit is entitled to a judgment. by attachment of a non-resident's goods, | There are two processes. One is the with the primary objject of compelling foreign attachment, and the other is the an appearance to answer the plaintiff's action in assumpsit. In the first, the suit.

affidavit of cause of action may be reAs is apparent from the definition, the quired. In the second, the declaration foreign attachment is one thing and the or statement of claim is necessary. The plaintiff's suit is another. The primary one must contain all the elements as deobject of the foreign attachment is to ob- signated in the laws pertaining to foreign tain an appearance to answer the plain-attachments. The other must contain all tiff's suit. In Pennsylvania, foreign at the elements designated in the laws pertachments are regulated by statute. It is taining to actions of assumpsit. They regarded as a severe remedy, allowed by are two distinct papers filed for two disour laws for the purpose of enforcing tinct purposes. the appearance of a non-resident, by seiz

In the case of Rowland v. Red Cross ing his property before the creditor has Packing Co., 1511. N. C. 468, the court

, legally established his claim.

said: "The plaintiff in a foreign attachIt seems that it is not absolutely indis

ment must furnish an affidavit of his pensable that the affidavit of cause of ac

cause of action, if required. The fact tion should be filed when the writ is is that he has already filed his narr and bill sued. It must be produced, however, of particulars makes no difference. The when there is a rule to show cause of defendant, whose property and rights of action. Our courts have consistently action form the subject of the attachheld that an affidavit of cause of action

ment, is certainly entitled to a sworn must aver such facts as will show the

statement of the cause of action in order court's jurisdiction at the time of issu- that the court may determine whether ing the writ. The purpose of the affida- there is ground for sustaining the attachvit is to sustain the writ of attachment, ment.” and unless it does in all respects, the writ is quashed. Whether the affidavit is

Before a judgment can be rendered for filed as a prerequisite to the issuance of want of an affidavit of defence, a declarthe writ or filed in response to a rule, itation or statement of claim must be is considered upon a motion to quash, filed. It is apparent from the record that and if defective and not sufficient in law none was filed by the plaintiff. The to sustain the writ, the motion is sus- plaintiff, therefore, was not entitled to a tained and the writ quashed.

judgment for want of an affidavit of deWhen the defendant appears general- fence. ly, he waives his privilege of moving to February 29, 1924, the motion that the show cause of action, and after such ap- ijudgment be stricken off is granted and pearance, it can make no difference the rule made absolute.

4

Q. S. of

Berks Co.!lowing consideration in property, as well Commonwealth v. Pengelly

as the covenants and promises for future support hereinafter more fully set forth,” and then provided that the defendant

was to convey to the complinant in fee, Husband and wife--Igreement of sep- clear of all encumbrances, a house and

lot No. 1224 Eckert Avenue, Reading, aration--- Bar to proceeding for support (the existing mortgage of $1,500 therein under let 13.1 pril 1867, P. L. 78.

to be paid off by the defendant not later

than Nov. 1, 1912); to give her all the An agreement between a husband and wife household goods and effects in the house, to live separate and a part, accompanied by or embracing as a part of its terms a reason- and: "The said James II. Pengelly hereahle provision for the wife's support, if not by agrees to pay unto his said wife, Katie fraudulently procured, if based upon a good consideration, if reasonable in its terms and W. Pengelly, the sum of $25 upon the actually carried into effect and performed by 15th day of each and every month for both parties, and which has not become null and void by aets of the parties (by reconcili- her support and maintenance, commencation, waiver or abandonment), is a bar to a ing with the 15th day of November, A. D. proceeding for support instituted by the wife in the Quarter Sessions under the Act" 13 1908.” April, 1867, P. L. 78.

The real estate was conveyed, the Rule to show cause why the order for

household effects were transferred, the support heretofore entered shall not be monthly payments for her support and vacated. Rule absolute.

maintenance were paid by the defendant

to the complainant, and the parties thereGeorye Izes, for defendant and rule. after continued to live separate and John B. Sterous, for the Common

apart. wealth.

On May 15, 1910, a second agreement

was entered into which in every particuBertolet, J., July 26, 1924.- The de- lar republished the terms of the previous fendant's wife has made complaint agreement, but the sum to be paid monthagainst him for desertion and failure to ly was reduced to $20. support her. The case was heard on May In 1919 the complainant began pro21, 1924, and an order was made on the ceeding for support under the act of defendant to pay the complainant $60 1807, one of the reasons being the failper month. Subsequently he presented ure of the defendant to fully pay off the his petition asking that the order be re- mortgage on 1224 Eckert Avenue. Bevoked because he and his wife had on fore hearing, a third agreement dated Oct. 31, 1908, entered into an agreement March 1, 1919, was entered into and upon of separation. I'pon this petition a rule its execution and payment by the defendwas granted to show cause why the order ant of the balance due on the mortgage, should not be revoked and the rule is the proceedings were withdrawn. This now to be disposed of.

agreement recites: "Whereas, the said The testimony taken at the time the James 11. Pengelly and Katie W. Penorder of $60 a month was made, and up-gelly have for some years been living on the hearing on the rule, shows the separate and apart from each other; and following facts:

Whereas, the said James H. Pengelly is On Oct. 31, 1908, an agreement was; legally liable for the support and mainentered into between the defendant and tenance of his said wife, Katie 11. Penthe complainant, which recited: "Where- gelly, and the said parties have agreed as, divers unhappy differences have of upon a definite monthly payment to be late existed between the said James H. made by the said James H. Pengelly Pengelly and Katie W. Pengelly, in so there for," and provides "that in considmuch that they have mutually agreed to leration of the premises and in discharge live separate and apart from each other; of the aforesaid liability the said James and Whereas, the said Katie W. Pengelly H1. Pengelly does hereby covenant, prohas consented to execute this agreement mise and agree to and with the said Katie upon receiving from her husband the fol-'W. Pengelly to pay unto the said Katie 1. Pengelly the sum of $35 upon the 41 Pa. Superior Ct. 512; Scott's Est., 147 15th day of each and every month for Pa. 102; Com. v. Smith, 200 Pa. 303; her support and maintenance commenc- Com. v. King, 37 Pa. Co. Crt. Rep. 635; ing with the 15th day of March, 1919." Commonwealth v. Hilton, 33 Lanc. Law

The notes of testimony do not show Rev. 121; Commonwealth v. Witsch, 33 the defendant's financial situation, the Lanc. Law Rev. 274; and Com. v. Barvalue of 1224 Eckert Avenue, or of the nickel, supra. Without going into a tedifurniture in it, as of the date of the various and unnecessary recapitulation of all ous agreements. That taken at the first the authorities, these rules appear to be hearing, but not reported stenographical- that an agreement between husband and ly, referred to the present and showed wife to live separate and apart, accomthat now the real estate is worth upwards panied by or embracing as a part of its of $10,000, that the defendant owns two terms, a reasonable provision for the other properties, a half interest in a wife's support, if not fraudulently proprinting business, and has an income of cured, if based upon a good considerafour to five thousand dollars a year.

tion, if reasonable in its terms, and acThe complainant while contending that tually carried into effect and performed the March 1, 1919, agreement is not sup

by both parties, and which has not beplementary to the earlier ones nor in- come null and void by the acts of the tended so to be but is a new and inde parties (by reconciliation, waiver, or pendent contract, says that even though abandonment), is a bar to a proceeding the three must be taken together she is for support instituted by the wife in the not thereby barred from proceeding for quarter sessions under the Act of 1867, support in the quarter sessions under and whether these conditions exist in any the Act of 1867, because it nowhere ap- particular case must always be, on all the pears that by these agreements she une

facts as developed, for the court below; quivocally released the defendant from and, the reasonableness of the provision his legal liability for her support, citing for the wife seems, under Adams v.

, Com. v. Barnickel, 22 Lack. Jurist, 17

Adams, supra, to be confined to the time (1920).

when the agreement was made. The deftndant takes the position that

While in many of the cases mentioned the agreements are a bar to these pro- the separation agreement provided for ceedings and cites Com. v. Richards, 131 the release of the husband's liability for Pa. 200, and Adams v. Adams, 32 Pa. support, the absence of such a provision, Superior Ct. 353, as conclusive authori-excepting in Com. v. Barnickel, supra, ties on the subject.

has not, as I recall the decisions, been the In my view, the three agreements controlling factor moving the court to must, not only by their terms but under refuse to accept the agreement as a bar the testimony of Mr. Wolff who repre- to proceedings under the Act of 1867. sented the defendant at the time, be taken If, however, the inquiry has disclosed together, and so taken they doubtless con- that, with reference to her maintenance stitute a valid separation agreement with and support, the wife was overreached a provision for the complainant's sup- when the agreement was made, that it port. The main question is whether, in the was unreasonable in its terms, that the absence of what the complainant refers husband has not paid what he agreed to to as an unequivocal release by her of all pay, and the like, the courts have not claim against the defendant for support, hesitated to make an order, they constitute a bar to proceedings un- The complainant and defendant here der the Act of 1867.

have agreed to live separate and apart The rules of law applicable to cases of and by their signed writings a not unthis character are discussed in Com. v. reasonable provision made for Richards and Adams V. Adams, both the former's support and maintenance. supra; Com. v. Smith, 13 Pa. Superior The terms were transfer to

the Ct. 358; Com. v. Hollinger, 16 Pa. Super complainant of valuable dwelling, ior Ct. 199; Rodenbaugh v. Rodenbaugh, the furniture in it, and, as now pro17 Pa. Superior Ct. 619; Shimp v. Gray, 'vided, payment by the defendant of $35

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