c31:No. 2349

DIETRICH, District Judge
(dissenting).
I concur in the view that we cannot consider certain testimony contained in the record; and in the further view that the Pennsylvania court never acquired jurisdiction to try the “feigned issue.” But there being no averment of the actual or constructive delivery of the. instrument of assignment to the defendant in error, or to another for her use, it is thought that the complaint fails to state a cause of action, and that the judgment should therefore be reversed. This question is entirely distinct from that of the sufficiency of the proofs to warrant a finding of delivery, which, as I understand, is the question discussed in the opinion.
But if the sufficiency of the complaint be assumed, I still think the judgment should be modified by deducting therefrom the amount of the Boggs & Buhl judgment, including interest and costs. It is conceded that this latter judgment was regularly entered in a suit, in which the Pennsylvania court had plenary jurisdiction, and that thereupon execution-garnishment process -was duly issued and properly served upon the plaintiff in error. In so far as concerns the amount of the garnishment claim, it was a cáse, therefore, falling squarely within the rule quoted in the opinion, with apparent approval, from Drake on Attachment. The court had jurisdiction of the defendant (the defendant in error here) and of the garnishee (the plaintiff in error here). Jurisdiction existing as to both, the garnishee could rest assured that by payment into court of the amount of the writ its protection would be complete. The fact that it paid in more than was required to satisfy th£ writ, and sought protection as to the excess through a “feigned-issue” proceeding, which was ineffective because jurisdiction as to such issue was not acquired over the person of the defendant in error, cannot operate to deprive it of the protection to which it was entitled upon yielding to the valid writ of garnishment. And as to the “feigned-issue” order or judgment, I am unable to see how it can be held void for want of jurisdiction in favor of one party and valid as against the other; if void as to one, it is void as to both. It is suggested that in that proceeding the court had jurisdiction of the judgment creditor and of the claimant, but in considering an issue between the plaintiff in error and the defendant in error, how can the presence of other parties operate to confer jurisdiction ? I am unwilling to hold, in effect, that the plaintiff in error was, at the time of the proceedings in Pennsylvania, not indebted to the de- . fendant in error, and thus enable her to escape her creditors there, and at the same time hold that it was and still is indebted to her, thus requiring it to pay the claim a second time.

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