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BEST TV v. SIMBERG. (01/07/64)

THE SUPREME COURT OF PENNSYLVANIA


January 7, 1964

BEST TV, INC., APPELLANT,
v.
SIMBERG.

Appeal, No. 197, Jan. T., 1963, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1955, No. 5975, in case of Best TV, Inc. v. Jack Simberg, George W. Kohlhof et al. Order affirmed.

COUNSEL

Jacob J. Kilimnik, for appellant.

Herbert Somerson, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: Bell

[ 413 Pa. Page 102]

OPINION BY MR. CHIEF JUSTICE BELL

Plaintiff brought an action of foreign attachment against defendants who were non-residents, and Melville Storage Co., garnishee. The lower Court found that garnishee, at the time of service of the writ, had no property of or belonging or owing to defendant debtor Simberg or Kohlhof. Plaintiff contends that the television sets which it attempted to attach in the possession of the garnishee were the property of defendant Simberg as a result of his fraudulent conversion (with the connivance of defendant Kohlhof), whereas the lower Court found that the property sought to be attached was either the property of plaintiff or of Muntz TV,*fn* a foreign corporation which was plaintiff's principal wholesale supplier. The evidence

[ 413 Pa. Page 103]

    adequately supported the Court's factual findings and justified its conclusions. Falk & Co. v. South Texas Cotton Oil Co., 368 Pa. 199, 82 A.2d 27; Atkins v. Canadian SKF Co., 353 Pa. 312, 45 A.2d 28.

This case is controlled by Falk & Co., 368 Pa., supra, where the Court said (page 205): "It is well settled that: 'A writ of foreign attachment is an original writ. It is used to commence an action, not against a person but against a res. "The foundation for the writ is the non-residence of the defendant ... within the jurisdiction": Kennedy v. Schleindl, 290 Pa. 38, 40, 137 A. 815. If there is no res to be attached at the time of service of the writ, the proceeding is a nullity. "... but if when the writ is served the garnishee has nothing belonging or owing to the defendant, the attachment is fruitless and a nullity": [citing numerous cases].'"

Disposition

Order affirmed.


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