Swanger versus Snyder

Supreme Court of Pennsylvania1865-05-24

50 Pa. 218

Summary · law.co

Holding. The court affirmed the judgment, holding that a defendant who receives notice of an attachment execution and allows judgment to be entered against the garnishee without objecting waives any right to later challenge irregularities in the attachment's issuance.

Swanger, a defendant in an attachment execution, objected that the attachment was issued irregularly because the creditor Snyder failed to produce a required certificate showing a prior execution returned with insufficient goods. Swanger claimed this defect made the attachment void and sought to recover money that Snyder obtained from a garnishee through the attachment proceeding. The court held that while the Act of Assembly imposed such a certificate requirement for writs of fieri facias, attachment executions were not covered by that statute's language or spirit, particularly since attachment defendants have an opportunity to be heard in court. Even assuming the attachment was technically irregular, Swanger forfeited any right to challenge it because he had notice of the attachment, appeared in the proceeding against the garnishee, and failed to object then—amounting to a waiver of the defect. The court rejected Swanger's complaint that the garnishee's answers to interrogatories were improperly prepared by the creditor's attorney, finding nothing fraudulent in the answers themselves.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an attachment execution requires the certificate of prior execution with insufficient goods that the Act of Assembly mandates for writs of fieri facias
Whether a defendant may challenge an attachment as irregular after failing to object during the proceedings
Whether answers to garnishee interrogatories prepared by the creditor's attorney are necessarily fraudulent

Procedural posture

Swanger, the defendant in an attachment execution, appealed a judgment affirming that the attachment was properly issued and that money paid by the garnishee should not be returned to him.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered, by

Strong, J.

Though the Act of Assembly which authorizes transcripts of judgments of justices of the peace to be filed and entered on the dockets of Courts of Common Pleas, declares that no fieri facias shall be issued by any prothonotary, until after a production to him of a certificate of a justice that an execution had been issued to a constable and returned “ no goods” sufficient, it cannot be held that attachment-executions founded on such transferred judgment are void, unless the record shows such a certificate of a fruitless execution. The most that can be said of such attachments is that they are irregular, and even that may he doubted. They are quite unlike writs of fieri facias, for they are required to be served upon the defendant when he is a resident of the county in which the attachment is issued, and the defendant may have a day in court. The Act of Assembly does not in words apply to attachments, and they do not seem to be within its spirit, when the defendant has an opportunity to be heard in opposition to the claim of the attaching creditor. The prohibition of the act is no more positive than is the second section of the general Act of 1836, relating to executions, which enacts that no execution shall be issued upon any judgment, unless the party against whom it shall have been rendered, his heirs, executors, and administrators, shall be first warned by a writ of scire facias, yet this has been held not to prohibit an attachment-execution: Ogilsby v. Lee, 7 W. & S. 414; Gemmill v. Butler, 4 Barr 232. In these cases the attachment-execution was treated as not even irregular. Conceding, however., in this case that the attachment was irregular, and that it might have been avoided, we think the court was right in holding that the plaintiff in error, who was the defendant in the attachment-execution, is not to be heard now in asserting its irregularity. * If he had notice of the attachment, and still suffered judgment to„go against the garnishee, he waived his fight to object that the writ issued erroneously. It may be that the garnishee may take advantage of irregularities in the proceedings on the attachment, and that he would be liable to the debtor if he paid over the money in his hands on an unsound judgment. This is all that was said in Skidmore v. Bradford, 4 Barr 296, but the judgment against Swanger, on which Snyder paid over the money, is not alleged to have been unsound. A scire facias confessedly might have been issued upon it, to which Swanger would have had no defence ; Green v. Seymour, 3 Watts 381; and he has suffered by nothing the garnishee has done. He has lost the advantage of a mere technicality, and lost it through his own neglect. We think the court below viewed the case correctly, and that there was no error either in receiving in evidence the attachment-execution, or in the charge relative to its effect, or in the answer to the plaintiff’s second and third points.

Nor was there error in the answer to the fourth point. There was no pretence that the answers made to the interrogatories were untrue, or that the plaintiff was wronged by them. It may be unusual for a garnishee .to employ the attorney of the attaching creditor to prepare his answers, but it does not necessarily conclude those answers to be fraudulent.

The judgment is affirmed.