Pottash v. Hartenfeld Bag Co.
Pottash v. Hartenfeld Bag Co.
Opinion of the Court
Opinion by
Plaintiffs issued a writ of foreign attachment which was dissolved by the giving of approved security, counsel for defendant at the same time entering his appearance. More than a year later plaintiffs filed a statement of claim with notice to file an affidavit of defense, whereupon the court below granted and thereafter made absolute a rule to show cause why the writ of foreign attachment should not be quashed, because the statement had not been filed “within one year after the issuance of the writ,” as required by the Act of May 12, 1897, P. L. 62; for the same reason it also discharged a rule for judgment for want of an affidavit of defense, to which rule defendant had filed an answer alleging the writ had abated. From these two orders of the court below plaintiffs now appeal.
The Act of 1897 contains no repealing clause, and a repeal by implication will not be adjudged unless there is a clear and strong inconsistency between the two enactments : Street v. Com., 6 W. & S. 209; Carpenter v. Hutchison, 243 Pa. 260. This is particularly true where, as here, the act relates to procedure, and the evil sought to be remedied clearly appears in the later statute. Under the Act of 1836, where a defendant could not or did not desire to enter security to dissolve an attachment, it might continue indefinitely unless an appearance was entered and the issue forced, which also might be deemed inconvenient or unwise. To remedy this evil the Act of 1897 was passed; it can be construed in consonance with the Act of 1836, and the two; read together, will then harmoniously provide that where security is entered to dissolve an attachment “the action shall proceed in
We cannot, however, enter judgment for plaintiffs for want of an affidavit of defense. Section 20 of the Practice Act of May 14, 1905, P. L. 483, provides that where questions of law raised in an affidavit are overruled, defendant “may file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days.” This defendant is, therefore, entitled to file such supplemental affidavit within fifteen days after the return of the record, after which the case will proceed in due course as in actions commenced by summons, which writ, since the Act of July 12, 1842, P. L. 339, abolishing imprisonment for debt, is the substitute, in this class of cases, for a capias ad respondendum.
The order of the court below quashing the writ of foreign attachment is reversed and the record remitted with a procedendo.
Reference
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- Syllabus
- Foreign attachment — Dissolution—Entry of security — Statement of cause of action — Statutes—Repeals—Implication—Acts of June IS, 18S6, P. L. 588, and May 12, 1897, P. L. 62. 1. Under section 62 of the Act of June 13, 1836, P. L. 583, if security is entered to dissolve a foreign attachment the cause shall thereafter proceed as in action begun by summons. 2. The Act of May 12, 1897, P. L. 62, which provides that the writ shall abate if no statement of the cause of action lias been filed within one year after its issuance, does not apply in cases where security has been entered to dissolve the attachment. 3. Repeals by implication are not favored, and will not be adjudged, if the two enactments can be reasonably construed together. Practice, G. P. — Affidavit of defense — Judgment—Act of May U, 1915, P. L. 1)88 — Appeals—Decree on reversal. 4. In reversing the court below for refusing to enter judgment for want of an affidavit of defense, final judgment will not be entered for plaintiff, but under section 20 of the Practice Act of May 14, 1915, P. L. 483, defendant will be allowed fifteen days after the return of the record to file an affidavit of defense to the merits. Pollock v. Chelsea Fibre Mills, 46 Pa. Superior Ct. 126, disapproved.