Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1963, No. 3030, in case of Herbert H. Cherry and Albert Cherry, individually and trading as Cherry & Company, v. Empire Mutual Insurance Company and Insurance Company of North America.
John A. McMenamin, with him Charles A. Lord, and Richter, Lord, Toll & Cavanaugh, for appellants.
Cecil P. Harvey, Special Assistant Attorney General, for insurance commissioner, appellee.
Barrett G. Tawresey, with him Robert B. Ely, III, for garnishee, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
This is an appeal from the order of the lower court sustaining a garnishee's preliminary objection to interrogatories
in aid of attachment execution to enforce a money judgment and staying execution until further order. The appeal, being interlocutory, must be quashed.
On December 31, 1963, plaintiffs-appellants obtained a money judgment against Empire Mutual Insurance Company. On January 29, 1964, a writ of execution issued directing the sheriff to levy upon and sell the property of Empire and to attach property of Empire in the possession of appellee, Insurance Company of North America, as garnishee of debts that it may owe to Empire and to notify garnishee that it "is . . . enjoined from paying any debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing thereof . . . ." On March 24, 1964 plaintiffs filed interrogatories to garnishee-appellee.
Subsequently, without leave of court, the Insurance Commissioner of the Commonwealth of Pennsylvania entered an appearance in behalf of Empire, and, thereafter, on April 8, 1964, filed a petition to abate the attachment execution alleging, inter alia, that the Commonwealth Court of Dauphin County, on January 31, 1964, entered an order to dissolve Empire, directing liquidation by the Insurance Commissioner and restraining all persons "from instituting or prosecuting any action at law or in equity or any attachment or execution against the said company." On April 13, 1964, garnishee-appellee filed preliminary objections to plaintiffs' interrogatories on the grounds that, by virtue of the Commonwealth Court's dissolution order, (a) plaintiffs were deprived of the capacity to sue or (b) the lower court lacked jurisdiction or (c) the property in possession of the garnishee was immune or exempt from execution. In their answers to the Commissioner's petition and garnishee's preliminary objections plaintiffs admitted the Commonwealth Court's order dissolving
Empire but denied that said order prevented them from prosecuting their attachment or ...