
    SCHWARTZ VS. KYNER.
    An attachment- of money in the hands of County Commissioners -will not lie.
    Error to Common Pleas of Franklin County.'
    Schwartz and Mansbach obtained a judgment against William Kunkle and John Reifsnider. Zern, Carr and John Reif•snider had a contract to enlarge the county jail. Schwartz and Mansbach issued an attachment execution upon their judgment against John Kyner et al. vs. County, Commissioners, garnishee. Upon the trial the Court reversed a question of law whether the attachment would lie. The verdict was for the plaintiffs-for $250.73. The Court subsequently entered judgment in favor of the garnishees in the following opinion, per
    Rowe, P. J.
    On the trial I reserved the question of law raised in the defendants’ point, namely, that the verdict must be for the defendants, for the reason that the garnishees are commissioners of the county, and that money in their hands can not be attached.
    On looking into the record I notice one or two things that ought to be observed upon and put aside before entering on the main question. And first the form of the verdict, simply finding for the plaintiffs a sum of money. But the record shows that the property in the hands of the garnishees (if any) was money, and the judgment may still be properly entered; Flanagin vs. Wetherill, 5 Wharton 280; Bouslough vs. Bouslough, 68 Penna. 498; Bonaffon vs. Thompson, 4 W. N. C. 210; Hartley vs. White, 9 W. N. C. 286, 289.
    In the next place the defendant in the judgment, John Reifsnider, was served and appeared to the action, formally, by Messrs. Orr & Gillan, his attorneys. But he was not ruled to-plead and has not .pleaded. The garnishees entered the plea of nulla bona, and that was the issue tried. On the plea of nulla bona the jury were sworn as to the garnishees, and not as to the defendant, Reifsnider, which was right; McCormac vs. Hancock, 2 Barr 311. A plea by the defendant is not a prerequisite to a trial between the plaintiff and garnishee. Regularly, however, if the defendant has appeared, he should be ruled to plead, and the case be put at issue as to him, before any trial. (Brightly’s Pr. Sec. 1202.) For having appeared he has the right to be heard, and may plead payment, a release or other matter arising subsequent to the judgment against him, and if his plea prevail it would be useless to go on against the garnishees. And so until he has pleaded, and that issue been determined, no judgment can be entered on the answer or verdict against the garnishee; B rightly’s Er. 1197; Ogilsby vs. Lee, 7 W. & S. 444; Carter vs. Wallace, 1 W. N. C. 63, 74.
    To come to the question—
    It is not to be doubted that county officers are not liable to-garnishment in respect of moneys in the county treasury, or debts due from the county; Bulkley vs. Eckert, 3 Barr 368; Erie vs. Knapp, 5 Casey, 173; Freeman, on Executions, Sec. 132; note to Divine vs. Harvie, 18 Am.. Dec. 200, 203, where-the three reasons on which the rule is founded are stated and the authorities collated.
    The point submitted by the counsel for the garnishees, and reserved by the Court, was intended to be an enunciation of this principle, and ought to have been affirmed if made in due form and time. And the question is whether it was so made.
    The plea was nulla bona. The plaintiffs contend that the privilege of exemption from garnishment could be waived' by the garnishees, and was waived by entering the plea of nullabona, which plea is only a denial of goods and admits their liability as commissioners to be made garnishees; that under the pleadings the point was not admissible. On the one hand' the contention is, that the issue being on plea of nulla bona, whether the process was regular is aside from that issue. On the other hand it is said, that the issue raises the question whether the garnishees had, at the service of the writ, or since, any goods of the defendant which were within the grasp of the process; and that the public moneys were not within the grasp-of the process; Poor vs. Colburn, 57 Penna. 416.
    It is not quite clear that under -nulla bona the garnishees may not show irregularity in the process, in some cases. As where the Court has no jurisdiction of the subject matter or of the; person, and the process is void; or where the defendant has not been served and has not appeared; Poor vs. Colburn, supra;' Swanger vs. Snyder, 14 Wright 222; Pancake vs. Harris, 10 S. & R. 109. But here the defendant appeared. And as to the-jurisdiction of the person, if 'the county of Franklin’ had been made the garnishee, or the county treasurer expressly and exclusively in respect of the county funds, the Court might be held not to have jurisdiction of the person; but as the writ in this case was framed, there is not, I think, and as I shall presently show, any question of this kind.
    This writ of attachment could not have been quashed. Look first at the facts of the case, and then observe the form and language of the writ.
    Reifsnider & Zern had contracted with the county of Franklin to build an addition to the jail, for $25,000.00, payable in 'installments as the work advanced. Whilst the erection was in progress this attachment in execution was issued and served -on John Kyner, Frank Creamer and W. S. Reed, as garnishees, they being the County Commissioners. When the jail was finished, to wit, April 14th, 1881, there was due the firm of Reifsnider & Zern on their contract $6,499.14. For this sum the County Commissioners issued a draft to them on the County Treasurer, and took their receipt in full. They endorsed the •draft and got the money it called for out of the county treasury, •except $300.00, which remained in the treasury, the County Treasurer making in his book this entry:
    “To cash, money due Reifsnider & Co., attached by the ■sheriff, in hands of the commissioners, $300.00.”
    And so the matter stood at the time of the trial.
    Now, looking at the record, we find that by the prsecipe •and writ, the sheriff was directed to attach any moneys, &c.> "belonging to either of said defendants in the hands or possession of John Kyner, Frank Creamer and W. S. Reed, Commissioners of Franklin County, and also any goods, moneys, rights, credits or effects due and payable, or to become due to either ■defendants in the hands or possession of said John Kyner, Frank Creamer and W. S. Reed, under or by virtue of any contract, bargain or agreement whatsoever between them or either of them, with clause of sci. fa&c., requiring said John Kyner, Frank Creamer and W. S. Reed to appear and show cause why said judgment of plaintiffs should not be levied of the effects of the defendants, or either of them, in their hands, or to come into their hands. The sheriff returns the writ as served in the same terms exactly.
    
      The first clause attaches moneys in the hands of John Kyner et al., Commissioners of Franklin County. The remainder of the writ does not designate them as such, nor is any contract with the county spoken of.
    Now it is clear that ‘the county of Franklin’ in its corporate capacity, is not the garnishee. The sheriff was not directed to-attach ‘the county of Franklin.’ But the Act of Assembly provides (Purdon 295 pi. 4) that a county shall be sued by its corporate name of the county of-. Neither is the County Treasurer, who is the custodian of the moneys of the county,, made garnishee.
    Then further, when we come to what is in the writ, we observe that the sheriff was not directed to attach any moneys dueReifsnider in the hands of John Kyner et al., commissioners, owing by the county to Reifsnider, and as matter of fact we-know that there never are moneys of the county in the hands of the County Commissioners, but always in the hands of the County Treasurer. Nor, as airead}' noticed, was the attachment laid on any moneys, rights or credits of Reifsnider, in. the hands of Kyner et al., under any contract zvith the county, or made by the commissioners on behalf of the county.
    Whatever may have been the intention of the plaintiffs, the language used in the writ really effected no more than to attach Nmoneys or debts due to Reifsnider from John Kyner and the-others, in their personal and individual capacity; Greer vs. Rowley, 1 Pittsburgh R. 3. Or if it effected more, it effected that also. If John Kyner, at the date of the service of the attachment on him, or afterwards, was indebted individually to Reifsnider, was not such individual and personal debt attached by this writ ? And so as to Creamer and Reed. How then could they, or either of them, move to quash the attachment on the-ground that neither the county nor its officers can be garnished in respect of the county funds ? The attachment does not purport to be in respect of the moneys of the county; certainly not exclusively so. The addition of the words, ‘commissioners-of Franklin County,” to the names of the garnishees, is not of itself operative to bind the moneys in the treasury: This writ then either attached moneys due defendants from the three garnishees, as individuals, and in that capacity only; or else it had a double operation, and attached as well what they, as private persons, owed defendant, as what effects they, as commissioners, had of his. In either case they could not have the writ quashed.
    In either case, what could they do but plead nulla bona? This was saying: As private persons, we have had no goods of his; as County Commissioners, we have had no goods of his; and any debt owing by the county to him (if attached) was not ■subject to the grasp of the attachment.
    Now, admittedly, neither of the garnishees had at any time, •as a private person, any goods of the defendant.
    Undoubtedly they, as commissioners, never had in their hands any money of his, nor owed him any debt. The county owed him a debt, and the County Treasurer had the money of the county in his keeping.
    In this state of the evidence, the point was made that the verdict must be for the garnishees, for the reason that they were the commissioners, and moneys in their hands could not be attached. This point was applicable to and was directed to the $300.00 lying In the county treasury awaiting the event of this suit, and was in effect a request to instruct that the plaintiffs were not entitled to verdict against the garnishees on account of that $300.00 due Reifsnider, because it was not within the grasp of the attachment. The jury should have been so told, and the point affirmed, and a verdict on all the evidence ordered for the garnishees, who were the defendants in the issue.
    Let judgment be entered, on the point reserved, for the garnishees, defendants in the issue, non obstante veredicto.
    
    Schwartz and Mansbach then took a writ of error, complaining of the entry of judgment upon the reserved point.
    
      Messrs. Brewer & Gehr, for plaintiffs in error,
    cited Ruff vs. Ruff, 85 Pa. 333; Poor vs. Colburn, 57 Pa. 416; Campbell vs. O’Neill, 64 Pa. 290; Winchester vs. Bennett, 54 Pa. 510; Irwin vs. Wickersham, 25 Pa. 316; Wilde vs. Trainor, 59 Pa. 439; Greer vs. Rowley, 1 Pittsburg 1; Divine vs. Harvie, 18 Am. Dec. 206; Swanger vs. Snyder, 50 Pa. 218; Kittaning vs. Brown, 41 Pa. 269; Vankirk vs. Clark, 16 S. & R. 286; Oil Co. vs. Forsythe, 48 Pa. 291; Morris vs. Ziegler, 71 Pa. 450; Bank vs. Lefever, 74 Pa. 49.
    
      Messrs. Sharpe, Orr and Gillan, contra.
    
   The Supreme Court affirmed the judgment of the Common Pleas on October 2nd, 1882, in the following opinion:

Per Curiam.

The point reserved — acquiesced in by the plaintiffs in error— necessarily presupposed that the money was paid to the defendants in their official capacity as Commissioners. If that fact had been in dispute, the defendants should have excepted to the reservation, and insisted that it should be submitted to the jury. A reservation can properly, be only on facts agreed to or found by the jury. It cannot be in doubt that if the defendants held the money as Commissioners of the county, it could not be levied on by an attachment execution.

Judgment affirmed.  