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13 Pa. Super. 528

Commonwealth v. Klein

Superior Court of Pennsylvania

Decided May 24, 1900

Superior Court of Pennsylvania · decided 1900-05-24

<p>Appeal, No. 35, April T., 1900, by-defendants in a suit of Commonwealth of Pennsylvania for use of I. Saperstein against Samuel Klein and Mayer Schwartz, partners, trading as Samuel Klein & Co. and Jacob Klein, from judgment of C. P. No. 2, Allegheny Co., JulyT., 1899, No. 41, in favor of plaintiff.</p> <p>Per Curiam.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.</p> <p>It appears from the record that the plaintiff claimed $167.53, with interest, upon a bond executed by defendants and given to secure the dissolution of an attachment under the act of March 17, 1869, pursuant to which said attachment was dissolved, and' the said attachment proceeding was subsequently carried oh to judgment against s'aid Samuel Klein & Company for the sum of $167.53, the action on the bond being to recover the amount of said debt and costs of said Samuel Klein & Company and Jacob Klein who is their surety on said bond. After the dissolution of the attachment by the approval of the bond Samuel Klein & Company filed an affidavit of defense denying, inter alia, the allegation of fraud set up in the affidavit upon which said attachment was based. Whereupon plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which rule, upon argument, the court below made absolute. Plaintiff subsequently sued out an action against defendants upon the bond given to dissolve the attachment, to which an affidavit of defense was filed denying plaintiff’s right to recovery on said bond on the ground that the question of fraud raised by the attachment affidavit had not been adjudicated and that defendant was not to be summarily deprived of the privilege of a jury trial upon that question, to wit: the averment by plaintiff and the denial by defendants of a fraudulent contract.</p> <p>The court entered judgment for want of' a sufficient affidavit of defense for 1201.57. Defendants appealed.</p> <p>Error assigned was in entering judgment against defendants for want of a sufficient affidavit of defense.</p>

Relies on Walls v. Campbell

Affirmed · Decided 1900-05-24

Pee Cubiam,

¶1This was an action upon a bond given by the defendants to obtain a release of the goods of Samuel Klein & Company from an attachment issued under the Act of March 17, 1869, P. L. 9, as provided in section 3. In due course the plaintiff in the attachment obtained judgment for the amount of his claim, notwithstanding an affidavit of defense in which the allegations of fraud were denied. That judgment has not been paid.

¶2The act provides a mode in which the defendant in the attachment may have a hearing upon the allegations of fraud upon which the attachment issued, and a dissolution of the attachment if they be not sustained. This mode was not pursued in the present case. “ Under the act of 1869 it is for the court to continue or dissolve the attachment. The jury have nothing to do with it. It is a statutory proceeding, and can be proceeded with only as provided by statute. The position contended for by the defendant would make the jury the final judges of the propriety of the attachment. If they can reverse the court and dissolve the attachment, we must concede that they can also restore the attachment by their verdict after it has been dissolved by the court. This brings us to the reductio ad absurdum:” Chief Justice Paxson in Walls v. Campbell, 125 Pa. 346. The defendants in the present case take, what seems to us, the still more untenable position, that although they gave a bond conditioned to pay the debt and costs if judgment should be rendered against the defendants in the attachment, and although such judgment has been obtained, yet there can be no recovery on the bond because the plaintiff cannot show a verdict sustaining the allegations of fraud, when from the very nature of the case the jury had nothing, and could have nothing, to do with those allegations, and, therefore, could render no such verdict. The court correctly held in the attachment suit, that the defendants’ affidavit of defense admitting the debt but denying the allegations of fraud upon which the attachment issued would not prevent judgment, and correctly held in the *531present case, that a judgment upon the verdict of a jury sustaining the allegations of fraud was not an essential prerequisite to a recovery on the bond.

¶3Judgment affirmed.

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