County of Philadelphia, ss.: The Commonwealth of Pennsylvania. To the Sheriff of the County of Philadelphia, Greeting: We command you, That you levy upon and attach the goods. and chattels, stocks, moneys and interests of and debts due to defendant in satisfaction of a certain judgment, obtained in our Court of Common Pleas No. ..... of the County of Philadelphia, at the suit of plaintiff against Term, 19...., No. .... the said defendant of for the sum of ... with interest from the 19...., and costs. And also, that by honest and lawful men of your bailiwick, you make known to the said defendant and to (names of garnishees) and all other persons in whose hands or possession the said goods and chattels, stocks, moneys, interest and debts, or any of them may be attached, as garnishees, that they be and appear before our said Court at Philadelphia, on the Monday of next, to show if anything they, the said defendant or the said garnishees have to say, why the said judgment besides costs of suit, should not be levied of the effects of the said defendant in the hands of the said garnishees. And have you then and there this writ. Witness the Honorable said Court, at Philadelphia, the President Judge of our in the year of our Lord one thousand nine hundred and ... day of Prothonotary. Service and Return It shall be the duty of the officer charged with the execution of such writ to serve a copy thereof upon the defendant in such judgment, and upon every person and corporation within his proper 88 89 For Return Days in Philadelphia, see Philadelphia Rule 14 (Part I, p. 13). A writ of attachment may issue simultaneously with a fi. fa., Tams v. Wardle, 5 W. & S. 222 (1843), and several attachments may issue simultaneously. Pontius v. Nesbit, 40 Pa. 309 (1861). The attachment is an execution auxiliary to the old modes of execution and not excluding them, and is not incompatible with them. Kase v. Kase, 34 Pa. 128 (1859). If it should become so, it is irregular. Heath v. Page, 63 Pa. 108 (1869). The plaintiff may at his option include several garnishees in the same writ. Cornelius v. Simpson, 3 Phila. 35 (1858). county, named in the said writ of attachment, in the manner provided for the service of a writ of summons in a personal action.90 From and after the service of such writ all stock belonging to the defendant in the corporation upon which service shall be so made, and all debts and all deposits of money, and all other effects belonging or due to defendant by the person or corporation upon which service shall be so made, shall remain attached in the hands of such corporation or person, in the manner heretofore practiced and allowed in the case of foreign attachment.91 Sheriff's Return Attached, as within commanded, the goods, chattels, moneys, and credits of the defendant in the hands of day of ... on the at .... o'clock in the noon, and declared in the presence of ..... (one or more) credible witnesses of the neighborhood, that the not the genee So answers Subsequent Procedure Sheriff. When the defendant in an attachment execution interposes a defense, he shall file with his plea an affidavit of defense; otherwise, on motion, the plea will be stricken off. If the plaintiff deems the affidavit insufficient in whole or in part, he may move for judgment as in actions of assumpsit.92 90 Act June 16, 1836, P. L. 755, § 36. This section has been repealed by Act March 20, 1845, P. L. 189, except where defendant is a resident of the county in which the attachment issued. A return of N. H. is conclusive that the defendant is non-resident and it follows that the attachment will not be quashed on the ground that the defendant has not been served. United Firemen's Ins. Co. v. McCartney, 8 D. R. 110 (1899). The manner of service is provided for in Act July 9, 1901, P. L. 614, § 1. (Part I, p. 14, &c.) Attack on writ by motion to quash and on the service and return by appropriate rules to show cause. 91 Act June 16, 1836, P. L. 755, § 37. The writ binds all moneys that come into the garnishee's hands after service; Sheetz v. Hobensack, 20 Pa. 412 (1853) ; or debts due by garnishee to defendant but not accruing until after the service. Glazier v. Jacobs, 250 Pa. 357 (1915). Where proceedings have been stayed on the judgment, the attachment may be dissolved on defendant's giving bond with sureties, and the bond shall stand in place of the attached property. Act April gruge dues 5, 1872, P. L. 43. 92 Philadelphia Rule 26. Proceedings against the garnishee by interrogatories hot ove and rule to answer, &c., are the same as in foreign attachment. 1 T. & H. Pracdelter when So even if you ongeant лише you see him, of later be dues as our organd chilton, he dan not pay such dilter but must pay the attachement execution If judgment shall be given for the plaintiff in such attachment, it shall be lawful for him to have execution thereof as follows, to wit: 1. If the property attached be stock in a corporation, as aforesaid, the execution shall be by a writ of fieri facias against the original defendant, by virtue of which such stock, or so much thereof shall be necessary to satisfy the judgment, and costs, may be sold by the sheriff, as in other cases. 2. If the property attached be a deposit in money, or a debt due, as aforesaid, execution Ishall be had in the manner allowed in the case of effects in the hands of a garnishee in a foreign attachment.93 Praecipe for Fieri Facias to Levy on Interest in a Partnership (Caption.) Real debt $2,000.00 Issue Writ of Fieri Facias as above, returnable first Monday of next; and command the sheriff to levy the said sum with costs upon the interest of the said defendant in any personal, mixed or real property, rights, claims and credits of the said defendant, as a member of the firm of C. D. and E. F., Copartners, trading as C. D. & Co. To Prothy. C. C. P. (Caption.) (See fi. fa.) Attorney for Plaintiff. (Date.) Writ 94 We command you that of the interest of de fendant of, in and to any personal, mixed or real property, right, claims and credits in the partnership of bailiwick you cause to be levied (&c., see fi. fa.). in your tice (5th Ed.), § 1200; Act June 13, 1836, P. L. 572, §§ 55, 56. Philadelphia Rule 27 provides that the proceedings in attachment execution after issuance of the writ shall be the same as in foreign attachment. According to the Act of 1836, § 35, the writ is like the sci. fa. in foreign attachment and, with the exception that the attachment execution does not bind any property until it is served, its force and effect is like the foreign attachment. The mode of procedure is the same in each. Bonnaffon v. Thompson, 83 Pa. 460 (1877). 93 Act June 16, 1836, P. L. 755, § 38. The effect of the judgment against the garnishee is to reach property from which the debt could not otherwise have been levied by fi. fa. Wray v. Tammany, 13 Pa. 393 (1850). *Required under Act April 8, 1873, P. L. 65; Purd, Dig. 3460, P. & L. Dig. 5620. See Hare v. Comm., 92 Pa. 141 (1879). But this method of levying on the defendant's interest in a partnership is not exclusive. A levy under an ordinary writ of fi. fa. is good. Dengler's Appeal, 125 Pa. 12 (1889), the levy being made not on the partnership property but on all of the interest of the defendant in the partnership whose place of business should be designated in the instruction to the sheriff endorsed on the writ. Under this writ the individual interest of a partner may be levied on and sold and the purchaser from the sheriff acquires the right in equity to an accounting from the partners. McGrossin v. McGrossin, 21 C. C. 33 (1898). Praecipe for Special Fi. Fa. Against a Corporation (Caption.) To Prothonotary C. C. P. any real, personal or mixed said Issue fi. fa. in above case and command the sheriff to levy upon property, franchises and rights of the Company, excepting lands held in fee. 19.... ..... Returnable first Monday of (Caption.) (See fi. fa.) We command you that of the goods and chattels, lands and tenements, franchises and rights, excepting lands held in fee, of the Company, a corporation defendant in your bailiwick, you cause to be levied (&c. see fi. fa.).95 Praecipe for Mandamus Execution Against a Municipality (Caption.) Issue Writ of Mandamus Execution in the above case, returnable the first Monday of Real debt, $... Interest from .., 19.... 96 To Prothonotary C. C. P. 95 The property of a corporation may be sold under an ordinary fi. fa. Reynolds v. Reynolds, 169 Pa. 626 (1895). This includes its general property, including such real and personal property as is not immediately and reasonably necessary for the exercise of its franchises, and also its gold, silver and copper coin, if it is a banking corporation; Second National Bank of Titusville v. Manufacturing Co., 13 W. N. C. 174 (1883). But the franchise of a corporation must be seized and sold under the special fi. fa. required under Act April 7, 1870, P. L. 58, § 1. Valle v. Arnold, 17 C. C. 33 (1894). But a sale on an ordinary fi. fa. of property which should have been sold under the Act of 1870 is a mere irregularity which, if acquiesced in at the time, will not be ground for setting aside the sale after it has been confirmed; Lusk's Appeal, 108 Pa. 152 (1885). Under the second section of the Act April 7, 1870, P. L. 58, levy may be made under the special fi. fa. on property in every county endorsed on the writ. The act repealed the provisions of the Act of June 16, 1836, P. L. 755, 88 73-75, authorizing_sequestration; Philadelphia & Baltimore R. R. Appeal, 70 Pa. 355 (1872). The special fi. fa. is a substitute for the writ of sequestration. Mausel v. R. R. Co., 171 Pa. 606 (1895). It cannot issue until after an ordinary fi. fa. has been issued and returned "nulla bona" establishing the insolvency of the corporation. The Act of March 20, 1845, P. L. 188, allowing attachment executions against debts due corporations, was not repealed as to solvent corporations by this act; Blake v. R. R. Co., 26 C. C. 63 (1901). 96 An ordinary writ of execution will not lie against a municipal corporation; the remedy by mandamus is exclusive. Monaghan v. Philadelphia, 28 Pa. 207 (1857). In the case of a county the writ is directed to the county commissioners; Act April 15, 1834, P. L. 537, §6; in that of a township, to the super Mandamus County of Philadelphia, ss.: The Commonwealth of Pennsylvania. To the Treasurer of the City of Philadelphia, Greeting: Whereas: plaintiff lately, in our Court of of the County of Philadelphia, to wit, .., 19.... of ... by the consideration of our said Court recovered against The City of Philadelphia, defendant, a judgment for the sum of .. dollars and ... cents, lawful money of Pennsylvania, and also the sum of.. dollars and dents, for costs, in a certain action of between the said plaintiff and the said defendant, whereof the said defendant is convict, as appears of record, &c.: And whereas, execution of said judgment still remains to be made, as we have been informed Now, therefore, we command you, That as the Treasurer of The City of Philadelphia aforesaid, you cause the amount of the said judgment, with the interest thereon and costs aforesaid, to be paid to the said plaintiff out of any moneys unappropriated, of the said The City of Philadelphia; and if there be no such moneys, then that you cause the same to be paid, as aforesaid out of the first moneys which shall be received by you, for the use of the said The City of Philadelphia; and have you this writ before our Judges at Philadelphia, at our said Court, there to be holden on the first Monday of next with your return thereto. Witness the Honorable said Court, at Philadelphia, the President Judge of our day of in the year of our Lord one thousand nine hundred and. Prothonotary. Execution Against Real Estate If sufficient personal estate cannot be found by such officer, he shall proceed to levy upon the defendant's real estate, or such part thereof, as he may deem sufficient to pay the sum to be levied, as aforesaid, but not less than a whole tract shall be levied on.97 Whenever real estate shall be taken in execution, as aforesaid, by any sheriff, it shall be his duty to summon an inquest, for the purpose of ascertaining whether the rents and profits of such real estate, beyond all reprises, will be sufficient to satisfy within seven years, the judgment upon which such execution was issued, with the interest and costs of suit, and he shall make a return, in due visors; Ibid., §7; in that of a city, to the city treasurer; Monaghan v. Philadelphia, supra; in that of a borough, to the burgess or treasurer or secretary of the town council; Act April 2, 1860, P. L. 589; and in that of a school district, to the directors or controllers and treasurer of the district. Act May 8, 1854, P. L. 621, § 21. 97 Act June 16, 1836, P. L. 755, § 43. For special proceedings when lands lie partly in one and partly in an adjoining county, see Act June 13, 1840, P. L. 689, § 12. |