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A husband may be garnisheed in a suit against his divorced wife; and a wife may be in a suit against her husband."
VII. The Writ.—The writ is so nearly like that in domestic attachment that it seems unnecessary to present it here at length. Authorities applicable to it in that form of the remedy are generally applicable to it in foreign attachment under the practice prevalent in nearly all the States. The statutory requisites for the writ of attachment of a non-resident's property differ little from those prescribed for its issuance against the property of a resident. An affidavit stating the ground on which the application is made is generally required, and made indispensable to the issuance of the writ.' The requirement of an attachment bond, though
1. Husband Garnisheed in Suit Against statute should be substantially followed, His Wife. - A pledge of chattels (her sep- even in the form of the oath, if a form is arate property), by a wise, for advances prescribed. Richards v. Donaughey, 13 made by her husband, is void with respect Phila. (Pa.) 514; Lankin v. Douglass, 27 to her creditors; and, upon divorce, the Hun (N. Y.), 517; Matthews v. Dare, 20 husband is chargeable with trustee process Md. 248; Einmitt 2. Yeigh, 12 Ohio St. at the suit of third parties in an action 335; Shockley v. Bullock, 18 Ga. 283; against the wife. Porter v. Wakefield, Barrill v. Humphrie's, 26 Ga. 514; Moody 1.46 Mass. 25.
v. Levy, 58 Tex. 532; Reyburn 21. BrackA wife, in a suit against her husband, elt, 2 Kan, 227; McCollem v. White, may be garnisheed, and defaulted for an- 23 Ind. 43; Hilton v. Ross, 9 Neb. swering though incompetent to appear 406. against him as a witness.
The indebtedness should be sworn to, Garnisheeing U. S. Marshal. -A creditor and shown to be such as the statute conmay, by service of notice upon a Federal templates, but that fact stated in a sworn marshal who has wrongfully seized prop- petition has been held sufficient. Foster erty on Sunday, make constructive levy i'. Hall, 4 Humph. (Tenn.) 346; Endel of State attachment, subject to prior liens, v. Leibrock, 33 Ohio St. 25+; Garner v. without disturbing the marshal's posses- White, 23 Ohio St. 192; Dunlevy v. sion. The court will hold the marshal Schwartz, 17 Ohio St. 640. The oath to liable as garnishee. Gumbel v. Pitkin, indebtedness should be positive. Manton 124 U. S. 131; s. C., L. Ed. 374.
v. Poole, 67 Barb. (N. Y.) 330; Black v. Garnisheeing Customs Officer.– A State Scanlon, 48 Ga. 12. officer cannot attach property in a United Absence of the plaintiff from the State States bonded warehouse, or in possession was held sufficiently stated, though by of an officer of customs; but the party the petition and not the affidavit. Farley placing the property in the warehouse V. Farior, 6 La. Ann. 725. (Without may be charged as trustee of the real swearing to the petition, this practice owner. Peabody v. Maguire, 79 Me. 572. should not be relied upon.)
When a Federal marshal takes property The plaintiff or his authorized repreof one not named in the writ, the rightful sentative should make the affidavit; if the owner may obtain relief by intervening. latter, he should state his authorization Gumbel v. Pitkin, 124 U. S. 131 (31 L. therein. Miller v. Chicago, etc., R. Co., Ed. 374.)
58 Wis. 310; Wiley v. Auliman, 53 Wis. Non-resident Temporarily Present. 560; Willis v. Lyman. 22 Tex. 268. “ Service of process on a non-resident, Corporations are represented by their while transiently within the State, will not presidents usually, but others may be suffice to hold him as garnishee. Green authorized for the purpose, Trenton v. Farmers & Citizens' Bank, 25 Conn. Banking Co. v. Haverstick, 6 Hals. (N. 454.
J.) 171; Faver v. Bank of Alabama, 10 2. Affidavit should be made on applica. Ala. 616. tion for the writ. Hubbardston Lumber Presumption of authority to make the Co. v. Covert, 35 Mich. 254. The prior affidavit is not to be inferred from the issue of summons need not be averred. face that the affiant is the plaintiff's attorPickhardt 11. Antony, 27 Hun (N. Y.), ney of record; though authorities differ 209. Nor need jurisdiction be asserted. on this point. Alexander 2. Dezaveaux, Branch y. Frank, 81 N. Car. 180. The 53 Cal. 664; s. C., 59 Cal. 476; Austin v.
general, is not universal in foreign attachment, preliminary to the issuance of the writ. 1 The execution of the writ does not differ from that in domestic attachment; even the garnisheeing of third persons in possession is similar. Nor is there difference in case of wrongful levy, with respect to the damages incurred.
Foreign attachment may issue after the action has begun by summons,
Latham, 19 La. 83; Gilkeson v. Knight, 1. Attachment Bond.--- The plaintiff is 71 Mo. 403.
not invariably required to file an underNon-residence, though merely inferen- taking to secure the defendant in case of tial from the facts sworn to, has been wrong, but many of the States require it; held sufficiently averred, - Mayor, etc., and the sum of the bond is usually double of New York v. Genet, 4 Hun (N. Y.), the amount of the plaintiff's claim. In 487; McKiernan v. Massingill, 14 Miss. Louisiana, it is half above. La. Code 375; James v. Dowell, 15 Miss. 333; of Practice, 1867. In some Stales, as in Graham v. Ruff, 8 Ala. 171;—the infer. Wisconsin and South Carolina, the bond ence, however, should be inevitable or is only for costs. Rev. Stat. Wis. 1878; most probable from the facts sworn, - Lynch S. Car. Code Pro. 1880. In the Mulherrin v. Hill, 5 Heisk. (Tenn.) 58; New England States, where attachment Love v. Young, 69 N. Car. 65:--not may follow ordinary summons, security necessarily, however, to the exclusion of for costs may be required. But of those all other hypotheses, -Cooney v. Whit- States requiring bond secure the field, 41 How. Pr. (N. Y.) 6; Ware v. defendant against damages, distinction Todd, i Ala. 199; Talcott v. Rozenberg, is made in some in favor of foreign at3 Daly (N. Y.), 203.
tachment. No bond is required before In New Englūnd, affidavit is not re- the issuance of the writ, in that species quired where attachment is incidental to of attachment, in Nebraska. Marsh v. the summons in actions on contract Steele, 9 Neb. 96; Olmstead v. Rivers, 9 debts, but it is generally required in the Neb. 234. Nor in Kansas,-Simon v. other States. Foster 2. Jones, i McCord Shelter, 25 Kan. 155;—“Where all the (S. Car.), 116; Hale v. Chandler, 3 Mich. defendants against whom attachment is 531; Bowen v. Slocum, 17. Wis. 181; issued are non-residents, no bond need Messner 2. Hutchins, 17 Tex. 597; Clark be given, although there be other resident v. Garther, 6 Ala. 139; Van Kirk v. defendants,”-Head v. Daniels, 38 Kan. Wilds, Il Barb. (N. Y.) 520; and the Like distinction is made in Ohio. cases cited above in this note. It has Rev. Stat, 1880. been held not required in New York, In Pennsylvania and Delaware, where in foreign attachment. Van Eiten v. foreign and domestic allachi
ent are as Hurst, 6 Hill (N. Y.), 311; s. C., 41 Am. plainly distinguished by statute as in the Dec. 748; Clark v. Luce, 15 Wend, (N. New England States, no bond is required Y.) 479; Bates v. Relyea, 23 Wend. (N. in the proceeding against non-residents Y.) 336.
and foreign corporations. Brightly's Affidavit by a Person Unauthorized.- Purdon's Digest, verbo ATTACHMENT; In a suit by a corporation against non- Rev. Stat, of Del. 1852. residents, the affidavit was made by a In most of the Stales bond is required. person not authorized to represent the Kellogg v. Miller, 6 Ark. 468; Ford v. plaintiff, and the proceedings were held Hurd, 4 S. & M. (Miss.) 683; Erwin a'. void. Manley v. Headley, 10 Kan. 88; Ferguson, 5 Ala. 158; Walker 7. Bank of Challis v. Headley, 9 Kan. 684; Willis v. Mobile, 6 Ala. 452. Waples on Altach. Lyman, 22 Tex. 268; Pool v. Webster, & Garn. pp. 112-127. 4 Metc. (Ky.) 278; Dean v. Oppenheimer, 2. Attachment after Summons.-Foreign 25 Md. 368.
attachment may issue pending action The grounds alleged in the affidavit begun by summons if the defendant be were “that the defendant is a foreign non-resident. Stockham 2. Boyd (Pa.), corporation or a non-resident of Brown 11 Ceni. Rep. 187. county.” Held, that there was no warrant Allegations of the principal defendant for the issue of the attachment because in trustee process should be filed before the allegations were disjunctive and non- the adjudication upon the disclosure, residence in the county not a statutory though it is within the discretion of the ground. Dickenson v. Cowley, 15 Kan. court to allow the filing afterwards, Dill 269.
v. Wilbur, 79 Me. 561,
VIII. Publication. The order for publication is made by the court, that the absent and non-resident debtor may be apprised of the proceeding against his property, and be offered his day in court for defence. Under the former method of foreign attachment, when the object was not to obtain an absolute decrec in rem, but merely a judgment nisi, in personam, the published notice was not employed; but now, when the object is to create and enforce a lien, just as in domestic attachment, the statutory requirement of the advertised invitation is all-important. Reasons drawn from the common law and from international law with respect to proceedings in rem might be adduced to show the essentiality of notice in order to final judgment, were the statutes silent ; but, as they prescribe publication as one of the conditions under which the extraordinary remedy is authorized, no further reason need be suggested. Publication, however, does not serve the defendant who is beyond the jurisdiction, so as to render him amenable to personal judgment; it merely offers him the opportunity to come and defend.
The notice should appear of record.3
The object of the publication is to inform the absent defendant of the proceedings against his property; not to get service upon him as a party.4
The publication should be made without unreasonable delay, and necessarily within the time stated in the order; and it should comply with the statute as to the description of the property and
1. Order of Publication.—The court 152; Soule v Chase, i Rob. (N. Y.) 222; grants the order without any special ap- Sheldon v. Wright, 5 N. Y. 497: Kellogg plication by the plaintiff or affidavit for v. Carrico, 47 Mo. 157; Cincinnati v. ihe purpose, if the affidavit made at the Bickell, 26 Ohio St. 49; Beecher v. institution of the proceedings is suffi- Stephens, 25 Minn, 146; Kerr z'. Hitt, ciently full. Bray v. Marshall, 75 Mo.
75 Ill. 51. 327. In some States, however, there 3. Recording the Notice.—The papers must be an oath to the fact that the containing the notice, with the oath of defendant cannot be found in the State. the publisher, officer or some one desigFaulk v. Smith. 84 N. Car. 501.
nated by law, should be filed in the case; 2. Newspaper Publication. -Silence in at least there must be record evidence of the statute, on the subject of publication, the fact of publication, in some form. would not justify the neglect of it. Hold Brinsfield v. Austin. 39 Ala. 227; Johnslingsworth v. Barbour, 4 Pet. (U. S.) ton v. Hannah, 66 Ala. 127: Haywood 466. The advertised invitation, however, v Collins, 60 Ill. 328; Bates z'. Crow, 57 does not place the non-resident in court Miss. 696; Freeman v Thompson, 53 constructively to have personal judgment Mo. 183: Millar v. Babcock, 29 Mich. rendered against him (Pennoyer v. Neff, 526; Carleton v. Washington Ins. Co., 951 U. S. 731, 734.), though some of the 35 N. H. 162; Ex parte R. Co., 103 U. States treat it as constructive vice.”
4. Publication for Information Only.As the object is to inform the absentee, “The publication of notice, as required the publication, which he is presumed to by statute in a case commenced by attachread, should acquaint him with the pro- ment, is not for the purpose of giving ceedings as fully as if he were within the court jurisdiction of the writ and the hearing of a proclamation. Gililand v. subject-maller of the suit, but to inform Cullem, 6 Lea (Tenn.), 521.
the defendant of the proceedings, and The advertised invitation should be in give him an opportunity to
come in a paper of large circulation, when pos- and defend.” Williams v. Stewart, 3 Wis. sible. Brewer v. Springfield, 97 Mass. 773. 8 C. of L.-21
other information needful to the defendant's proper understanding of that to which his answer is invited. The description, however, is not usually minute. The publication must appear as often, and for as long a time, as the order and the statute require.3
1. Publication — Delay - Description.— been attached, and description is reReal estate of a non-resident was al- quired by statute or ordered by the touri, tached in Ohio, and summons returned it is not a compliance to only name the “not found.” Notice by publication was property generally as located in the not completed until eight months after county. Hathaway 2. Larrabee, 27 Me. the return of summons. It was held error 449; Henry V. Mitchell, 32 Mo. 512; to dismiss the action for an alleged want Porter v. Byrne, 10 Ind. 146. But parof jurisdiction by reason of the delay. ticular descriptions of property in a Bacher v. Shawhan, 31 Ohio St. 271, in publication notice, are not usually reexposition of $ 4988, Rev. Stat. of Ohio. quired. Moore v. Kidder, 55 N. H. 488.
A farm was attached, in a suit against 3. Publication-Time Required. - The a non-resident, and publication made defendant is entitled to the full period without description of the land. The named in the order. Swelt v. Sprague, debtor sold his farm and the unpaid price 55 Me. 190; Bogart v. Swezey. 26 Hun was reached by the garnishment of the (N. Y.), 463; Lowenstine v. Gillispie, 6 purchaser, and paid into court, and the Lea (Tenn.), 641; Colwell i'. Bank of farm was released. Held, on appeal, Steubenville. 2 Ohio, 229; Haskell v. that the notice was sufficient; that no Bartlett, 34 Cal. 281; Freeman v. Thompdescription was required by the statute son, 53 Mo. 183; Pyle v. Cravens, + Litt. (Rev. Stat. of Ohio, S 5051); and that the (Ky.) 17; Swayze i'. Doe, 13 S. & M. release of the farm did not deprive the (Miss.) 317: Saffaracus v. Bennett, 6 court of jurisdiction. Core v. Oil & Oil How. (Miss.) 277; Hunt v. Wickliffe, 2 Land Co., 40 Ohio St. 636. Non-resi. Pel. (U. S.) 201. To postpone publicadence presumed from publication, in tion till the expiration of the time named Ohio, when attachment is collaterally in the order is fatal. Mojarietta i'. attached. Hammard v. Davenport, 16 Saens, 68 How. Pr. (N. Y.) 505; Blossom Ohio St. 177.
7. Estes, 59 How. Pr. (N. Y.) 381; s. C., 2. Publication-Description of Property 84 N. Y. 614. Su also if the notice does Therein. -Ordinarily, it is only necessary not appear the number of times ordered. to state, for the information of the absent Dow v. Whitinan, 36 Ala. 604; Sweit v. defendanı, that property of his is attached Sprague, 55 Me. 190; Bachelor v. Bacheor to be attached, unless the statute lor, i Mass. 256; Lawlin v. Clay, 4 Litt. requires description. Harris v. Grodner, (Ky.) 283. And if time is fixed within 42 Mo. 159. It is not usually required which the trial may occur after the last with respect to personal property. Race appearance of the publication, it must be v. Maloney, 21 Kan. 38; Beckurch v. accorded to the defendant. Forsyth v. Douglas, 25 Kan. 229. “When attach- Warren, 62 III. 68; Vairin v. Edmonson, ment is levied on the land of a non- 10 Ill. 270; Andrews v. Ohio R. Co., 14 resident, and summons is not made on Ind. 169; Muskingum Valley Turn. him, the couri possesses no power to pike v. Ward, 13 Ohio, 120; Haywood 2. render a judgment against him and to Russell, 44 Mo. 252.
And all statute order the sale of his property to satisfy requirements with respect to the time the same, unless publication has been of publication must be observed. King made as required by law; and the notice v. Harrington, 14 Mich. 532; Likens v. should contain a description of the prop- McCormick, 39 Wis. 313; Sexton erty attached." Westcott v. Archer, 12 Rhames, 13 Wis. 99; Morris v. Hogle, 37 Neb. 345. There need not be a specific Ill. 150; Schnell v. Chicago, 38 111. 382; statement in the notice that the sale of Pomeroy v. Betts, 31 Mo. 419; Bobb v. the attached property will be ordered. Woodward, 42 Mo. 482; Scorpion S. M. Gilliland '. Cullem, 6 Lea (Tenn.), 521; Co. v. Marsano, 10 Nev. 370; Grewell v'. Rapp v. Kyle, 26 Kan. 89.
Henderson, 5 Cal. 465; People v. Huber, The description is sufficient if the 20 Cal. 81; Lawrence v. State, 30 Ark. property is identified. Howard v. Dan- 719; Cook v. Farren, 34 Barb. (N. Y.) 95; iels, 2 N. H. 137; Crosby 2. Allyn, 5 Lovejoy v. Lunt, 48 Me. 377; Zacharie Me. 453; Bacon 2. Leonard, 4 Pick. 7. Bowers, 3 S. & M. (Miss.) 641; Mitch(Mass.) 277; Whitaker v. Sumner, 9 ell v. Woodson, 37 Miss. 567; Magoffin Pick. (Mass.) 308. When property has v. Mandaville, 28 Miss. 354; Crabb v.
IX. Return of the Writ. - In the present system of attachment, making little distinction between foreign and domestic, the requisites of the return are the same whichever is employed. The officer must report to the court when, and how, and what he has attached, without being obiiged to observe nicety or undue particularity.He must, however, substantially comply with the statute ;3 and his description of the property must certainly identify it. 4
It has been held that reference to the property attached under prior writs, and identifying it as the same property levied upon in the writ returned, is sufficient description. The writ may be quashed because of fatal defects in the return.6
X. Appearance of the Defendant. — The debtor, by “surrendering his body," does not now terminate the attachment proceedings. There is no significance in his mere " surrender,” since the abolishment of imprisonment for debt. His entering bail for his personal appearance is no longer a satisfaction of the writ under which his property is attached. Giving security for the attachment defendant's claim is now the only way in which he can put an end to a valid proceeding and render the suit wholly a personal one.
The debtor's appearance in the case against him, whether special or general, is subject to the ordinary rules governing litigants with respect to it; and, so far as those rules are peculiar to attachment causes, they are applicable to the foreign and the domestic alike. It would therefore be a useless lengthening of this article to enlarge on the subject of the defendant's appearance.
Where distinction between foreign and domestic attachment is Atwood, io Ind. 322. 331; Hill v. Faison, been served, which contained a sufficient 27 Tex. 428; Coleman 7. Anderson, 10 description of the property, the sheriff in Mass. 105; Gary v. May, 16 Ohio, 66; subsequent writs described it as "the Bussey v. Leavitt, 12 Me. 378.
same property attached by me as the 1. Paine v. Farr, 118 Mass. 74; Bryan properiy of A by virtue of a writ of forv. Trout, 90 Pa. St. 492; Moore v. Kid- eign allachment issued at the suit of B, der, 55 N. H. 488; Nichols v. Patten. 18 the time and manner of service being Me. 231; Willard v. Sperry, 16 Johns. stated in full by my return to said writ.' (N. Y.) 121; Moore v. Coates, 43 Miss. Hild, that this recital bound both the 225
sheriff and his privies, the execution 2. Banister v. Higginson, 15 Me. 73; creditors, and subordinated their writs to Rowan v. Lamb, 4 Greene (Iowa), 468; the previous attachment. Jaffray's ApBaldwin v. Conger, 17 Miss. 516.
peal, foi Pa. Si. 583. 3. Saunders v. Columbus, etc., Ins. 6. Defective Return.-" In a direct proCo., 43 Miss. 583; Tucker v. Byars. 46 ceeding to set aside a foreign attachment, Miss. 549; Pond v. Baker. 55 Vt. 400; the court will quash or reverse where the Thompson v. Eastburn, 16 N. J. L. 100; sheriff has omitied to return a service on Stodart v. McMahan, 35 Tex. 267. a person in possession of the land at
4. Fenglein v. Cairo, etc., R. Co., 6 tached, or to make publication if the posMo. App. 580; Porter v. Pico, 55 Cal session be vacant;" but such omission is 165; Ela v. Shepard, 32 N. H. 277; not held fatal to a collateral proceeding Bryant v. Osgood, 52 N. H. 182; Carleton to recover the land. Sterreti v. Howarın, 7. Ryerson, 59 Me. 438; Fullam v.Stearns, 76 Pa. St. 438. 30 V 443: Rodgers v. Bonner, 55 Barb. ** The power of quashing the writ of (N. Y.) 9; Hancock v. Henderson, 45 foreign attachment is limited to proceed
ings that are irregular, defective, or im5. Description of Property in the Writ. proper." Steel 2'. Goodwin, 113 Pa, St. -A writ of foreign aliachment having 288.