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GENERAL MAINTENANCE ENGINEERS v. PACIFIC VEGETABLE OIL CORP. ET AL. (04/21/54)

April 21, 1954

GENERAL MAINTENANCE ENGINEERS, INC.
v.
PACIFIC VEGETABLE OIL CORP. ET AL.



COUNSEL

Henry Thomas Dolan, Philadelphia, for appellant.

Albert A. Drucker, Arno P. Mowitz, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Woodside

[ 175 Pa. Super. Page 353]

WOODSIDE, Judge.

This is an appeal by the garnishee Rohm & Haas Co. from the order of the court below entering a judgment against the garnishee on a foreign attachment and from an order of the court discharging a rule to show cause why the judgment should not be stricken off.

On February 7, 1951, the plaintiff, General Maintenance Engineers, Inc., instituted suit by a foreign attachment summoning Rohm & Haas Co. as garnishee of funds belonging to Pacific Vegetable Oil Corp., the nonresident defendant. An affidavit of cause of action was filed the same day. The defendant never entered an appearance. On May 25, 1951 the plaintiff filed interrogatories upon the garnishee which were duly answered. Subsequently, plaintiff filed additional interrogatories which the garnishee also answered.

Without proceeding to judgment against the defendant and without filing a statement of claim, the plaintiff on July 10, 1952, more than a year after the issuance of the writ, moved for judgment against the garnishee on the answers to the original and additional interrogatories. After argument the lower court (Smith, J.) granted said motion on October 7, 1952 and entered judgment against the garnishee. The garnishee then petitioned the court (Alessandroni, J.) on October 21, 1952 to strike off the judgment against the garnishee on the grounds that no judgment had been entered against the defendant, no statement of claim had been filed and no determination had been made of the main issue between plaintiff and defendant. The Court issued a rule. After argument, it not only discharged the rule, but also entered a judgment nunc pro tunc against the defendant, Pacific Vegetable Oil Corporation.

[ 175 Pa. Super. Page 354]

The garnishee has filed an appeal from both orders of the court. There were some nice questions involving whether there was any debt due the defendant by the garnishee which was subject to foreign attachment, and whether the writ caught anything on the day it was issued. Everyone concerned with the case seemed to have become so intent on the determination of these questions, which were ably litigated over a period of approximately 18 months, that no attention was given to the basic and primary question -- did the defendant owe the plaintiff anything?

Because of the manner in which we are disposing of this case we see no need to discuss the court's decision on the questions referred to above, except to say that we think the lower court was correct in its conclusion on the questions argued there before judgment was entered against the garnishee. Had judgment been properly entered against the defendant according to the provisions of the statute, we would have affirmed the lower court's judgment against the garnishee.

We are of the opinion, however, that judgment could not be entered against the garnishee without judgment first having been entered against the defendant, and that the court's effort to enter judgment against the defendant over a year after the writ was issued and without a statement of claim being filed was void. Process by foreign attachment is a creature of statute. It is not affected by the present Rules of Civil Procedure. See Rule 1402 PaR.C.P., 12 P.S.Appendix.*fn1

Unlike attachment executions where judgment is obtained against the defendant before the writ is issued against the garnishee, in actions of foreign attachment

[ 175 Pa. Super. Page 355]

    the judgment is obtained against the defendant after the writ is issued.

This action contemplates two judicial determinations. Simply stated, one is whether the defendant owes the plaintiff anything, and the other whether the garnishee has anything of the defendant's from which the plaintiff can collect what the defendant owes him.

The issue between the plaintiff and the defendant is distinct and different from the issue between the plaintiff and the garnishee. ...


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