Opinion
March 20, 1940.
April 15, 1940.
Attachment — Foreign attachment — Non-residence of defendant — Affidavit of cause of action — Averment — Sufficiency — Act of June 13, 1836, P. L. 568.
1. Under section 44 of the Act of June 13, 1836, P. L. 568, non-residence of the defendant in the state is a requisite to the validity of a foreign attachment and must be averred in the affidavit of cause of action. [453]
2. An averment in the affidavit of cause of action stating that the defendant "is at the present time, to the best of plaintiff's knowledge, residing at" a stated place in another state, "and has no place of business, office or agent within the State of Pennsylvania," was insufficient as an averment that defendant was a nonresident. [453-4]
Appeals — Review — Point not raised below — Jurisdictional question.
3. A jurisdictional point may be raised for the first time on appeal.
Argued March 20, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 13, March T., 1940, from order of C. P. Allegheny Co., Jan. T., 1939, No. 2800, in case of John Magel v. Pauline Kleber Springs. Order reversed and writ quashed.
Foreign attachment proceeding.
The opinion of the Supreme Court states the facts.
Motion to quash writ of foreign attachment dismissed, before McNAUGHER and KENNEDY, JJ., opinion by KENNEDY, J. Defendant appealed.
Error assigned was order dismissing motion to quash.
W. Denning Stewart, with him Adie Allen Stevens, II, Stewart Lewis and Horace Thomas, Jr., for appellant.
No appearance was made nor brief filed for appellee.
This appeal is from the refusal to quash a writ of foreign attachment. The statute states that "A writ of foreign attachment . . . may be issued against the real or personal estate of: (a) any person not residing within this Commonwealth . . ." Section 44 of the Act of 1836, P. L. 568, as amended, 12 PS section 2891. One of the purposes of proceeding by foreign attachment is to obtain the appearance of a nonresident defendant. It is therefore necessary to aver that the defendant whose property it is proposed to attach is a nonresident. The averment in the affidavit of cause of action on which the writ issued states that the defendant "is at the present time, to the best of plaintiff's knowledge, residing at Myrtle Beach, in the State of South Carolina, her address being P. O. Box No. 127, Myrtle Beach, South Carolina, and has no place of business, office or agent within the State of Pennsylvania where or upon whom process may be served." All of that may be true and yet the defendant may be a resident of Pennsylvania, temporarily out of the state; defendant may not have a "place of business, office or agent" and still not be a nonresident. The averment is insufficient: Raymond v. Leishman, 243 Pa. 64, 89 A. 791; McLennan v. Public Utilities Construction Co., 245 Pa. 567, 91 A. 942; Kohl v. Lyons, 125 Pa. Super. 347, 189 A. 498. While this objection was not made in the court below, the point is jurisdictional and should be noticed here: McCoach v. Phila., 273 Pa. 317, 322, 117 A. 71. It is therefore unnecessary to discuss the other question raised.
Order reversed and writ quashed.