« PreviousContinue »
still observed, appearance does not now operate the dissolution of the attachment.)
The defendant may appear by attorney duly authorized. An attorney ad litem cannot bind the defendant if he has no other authority than his appointment by the court." It was held that a non-resident may appear specially by attorney in a circuit court of the United States and have attachment of his property disinissed on the ground of his non-residence and his not being served with process. 3
Although one appear specially merely to move a change of venue from a county in which he has nothing of his attached, to another where it is located and attached, it is held that the attachment lien was good from the date of the levy. 4
1. Appearance of the Debtor.-In Penn- as that of a non-resident, filing the sworn sylvania, where foreign altachment was complaint and bond, as required. The formerly deemed dissolved upon the ap- wril issued and shares of stock were atpearance of the defendant, and his giving tached, and Alley returned “not found." bail, it is held that his appearance, and Affidavit of his non-residence was then judgment against him by agreement, does filed and application for publication made. not release the garnishee nor dissolve the Alley appeared specially, by attorney, and attachment. Littell v. Scranton Com- filed a special plea to the jurisdiction, and pany', 42 Pa. St. 500. In this case the moved the dismissal of the suit. The court court explained the change in the law of sustained the motion. Mandamus was the State by which the practice was made then asked of the U. S. supreme court to to differ from the former method of for- compel the circuit court to reinstate the eign attachment to compel appearance cause and order the publication, and was and the giving of bail.
refused. Waite, C. J., for the court, said: For special and general appearance in “ Under $ 739 of the revised statutes, no attachment suits, see Waples on Attach. civil suit not local in its nature can be & Garn., pp. 388-391.
brought in the circuit court of the United 2. Appearance by Attorney.-In a for- States against an inhabitant of the United eign attachment suit before a justice of States, by original process, in any other the peace in Arkansas, an attorney ad State than that of which he is an inlitem was appointed by the justice for the habitant or in which he is found on defendant. There was judgment for the serving the writ. It is conceded that the plaintiff, and the attached property-land person against whom this suit was
- was sold. The purchaser sued the oc- brought in the circuit court was an incupant in ejectment and recovered; but, habitant of the State of Massachusetts, upon appeal, it was held that the appear- and was not found in or served with proance of the attorney ad litem in the attach- cess in Iowa. Clearly, then, he was not ment case did not give the justice juris- suable in the circuit court of the district diction over the altachment defendant. of Iowa, and, unless he could be sued, It was held, further, however, that the no attachment could issue from that court court trying the ejectment suit should against his property.” Ex parte Railway have admitted offered evidence to show Co., 103 U. S. 794. that the attachment defendant ratified the 4. Appearance to Change Venue. -An appointment of the attorney ad litem, by action was commenced against a nonhimself engaging the same attorney. resident, and property attached in Visarı v. Bush, 46 Ark. 153.
county other than that in which the suit The appearance of an authorized attor. was instituted. The defendant specially ney cures defects of service on a foreign appeared and moved for a change of corporation. Weed Sewing Machine Co. venue to the county in which his property v. Boutelle, 56 Vi. 570.
had been attached. The motion was 3. Non-resident Unserved Specially Ap- granted. Held, that the attachment lien pearing to Dismiss Attachment in U. S. was good from the date of the levy, and Court -The Des Moines & Minn. R.Co., outranked that of another attachment an Iowa corporation, sued John B. Alley, brought, prior to the change of venue, in of Mass., for about $100.000, and asked the county to which the first-mentioned attachment against his property in lowa case was removed, and brought in that
General appearance to defend the suit may be made in Virginia at any time while the cause is pending, even just before the sale, when the defendant non-resident has not been legally served, being merely notified by publication or its equivalent. He may have the case reopened after judgment, and may have it transferred to a Federal court then on proper grounds.2
Under the prevalent system, the foreign defendant, upon general appearance, may dissolve attachment by bonding, where that is the practice in ordinary attachment, and resort to any means of defence proper for a resident.3
Without appearance in the court below, the non-resident cannot be heard in an appellate court, though he may reap the advantages of an appeal made by co-defendants who did appear in the a quo.4
county. Laird Bros. v. Dickerson, 40 and publication made. Judgment was Iowa, 665. Compare Courtney v. Carr, rendered April, 1878, against the corpora6 Iowa, 238.
tion defendant. In September, 1878, the Under Wisconsin Laws, 1880, ch. 222, defendant petitioned the court to reopen a sheriff cannot make constructive levy the case, which was allowed under the upon logs on Chippewa river and its statute (ch. 148, § 27), and then the case branches, in another county. Shafer z'. was removed to the U. S. circuit court Hogue (Wis.), 35 N. W. Rep. 928. on the ground that it was between citi os
1. Appearance Pending the Suit and of difierent States. Smith v. Life AssoBefore Sale.-Defendant in a foreign al- ciation of America, 76 Va. 380. tachment may appear pending the suit, The unserved non-resident defendant tender security for costs, and have it re- may appear at any time pending the suit heard, under the Virginia Code 1873, ch. (in Virginia), and, tending security for 148. $ 27.
costs, have an attachment cause reheard. Chilton, in 1878, sued out foreign at- Anderson v. Johnson, 32 Gratt. (Va.) 558. tachments against Smith & Wimsatt, non- 3. Appearing and Bonding, etc. — The residents, and L., home defendant. The defendant, having replevied a bark aloriginal summons was served on L., and, tached as the property of non-resident as to S. & W., was returned, "S. & W. debtors, by executing a bond and security non-residents." After the return day to satisfy the judgment if rendered for another summons was returned, indorsed. plaintiff, the court held that the vessel was “Hereby we acknowledge legal service of released from the lien of attachment, and the within,” which acknowledgment was the attachment itself dissolved, and the made in the District of Columbia. In action rendered an ordinary one at com1879. sale of the attached effects was mon law. Walter v. Kierstead, 74 Ga.19. decreed. In 1880, before the decree was After general appearance, the defendexecuted, S. & W. appeared and peti- ant in foreign attachment has the same tioned that the cause be reheard. Held, rights of defence, of bonding the properiy on appeal, that the acknowledgment of attached, of appeal, and of recovering service out of the jurisdiction was only damages for a wrongful levy as in equivalent to posting or publication domestic attachment. So these subjects do notice; that the defendants non-resident not specially belong to this branch of the could appear, at any time within five years general subject. The authorities are apfrom the date of the decree, to have the plicable to both. cause reheard. Smith v. Chilton, 77 Va. 4. Appeal.-In a foreign attachment. 535.
held, that the absent defendant, who does 2. Appearance After Judgment. —A not appear in the court below, cannot non - resident insurance company was appeal; but that, there being two absent sued by a citizen of Virginia, in his own defendants sued for a joint debt, one of State, on a contract made outside of the whom appears and answers, and, there State. On his affidavit that the company being a joint decree against both, upon is a non-resident corporation having the appeal of the one who did appear the effects in P. county of his State, attach- decree may be reversed
to both. ment was issued to levy upon those effects, Lenow v. Lenow, 8 Gratt. (Va.) 349.
XI. Judgment and Execution.—The final judgment against the attachment defendant, though personal in form, should show its character as a decree in rem by awarding privilege upon the property attached, or directing special execution against it But because of the recognized character of the proceeding as a remedy to create and enforce a lien, the privilege ought to be deemed implied when not expressed in the decree, unless there is statutory inhibition. There has not been perfect uniformity in the decisions on this point. 1
The lien, created as a hypothetical one by the attachment or garnishment, is rendered certain by the judgment sustaining the attachment; and, by retroaction, it is made a true lien from its creation by the levy or the service on the garnishee, as the case
1. Judgment with Privilege. - Personal Formal recognition of the lien, in the judgment is held to imply a recognition of judgment, is not necessary in all the the lien created by attachment, though the States; and since the attachment suit is privilege be not expressed. Betancourt nominally in personam, the judgment may 2. Eberlin, 71 Ala. 461, 467; Waynant v. be nominally so, yet really be in rem. Dodson, 12 lowa, 22; Coleman v. Waters, Even in Missoriri, sureties cannot avail 13 W. Va. 278.
themselves of the lack of judgment " with But not if the attachment has been dis- privilege" and special execution, if the atsolved, or is the final decree shows that no tached property has been executed after privilege upon the property attached is the sustaining of the attachment. Thole meant to be conferred. Wasson v. Cone, v. Watson, 6 Mo. App. 591. 86 III. 46; Love v. Voorhies, 13 La. Ann. 2. The Judgment Perfects the Lien.549.
The lien is perfected by judgment which is On the other hand, it has been held that retroactive in effect upon the levy. Good. the decree should award special execution win z'. Richardson, ui Mass. 475: Cushing on the property attached, in order to pre- v. Hurd, 4 Pick. (Mass.) 253; Coffin 7'. serve the lien, - Johnson v. Flolley, 27 Mo. Ray, i Metc. (Mass.) 212; Van Loan '. 595;-though the form of the judgment Kline, 10 Johns. (N. Y.) 129; Tennant v. may be changed to effect this result re- Battey, 18 Kan. 324; Scarborough 7. Magarding the lien.-Massey v. Scot, 49 Mo. lone, 67 Ala. 570. 278. But, in Missouri, the judgment is Prior to judgment, the lien cannot be not special if the attachment defendant asserted in a separate action to set aside a has made himself a party. Jones v. Hart, conveyance by the debtor-owner of the 60 Mo. 351: Huxley v. Hurrold, 62 Mo. property on which the inchoate lien is be516; Philips v. Stewart, 69 Mo. 149; ing created. Tennant 2. Battey, 18 Kan. Borum 7. Reed, 73 Mo. 461; Maupin z'. 321. Lead-Mining Co., 78 Mo. 24.
The judgment perfects the lien, and renIf there is no recognition of the attach- ders it complete from its incipiency; and ment, expressed or implied, in the decree, it may be vindicated upon the property and no special execution, the judgment is attached. Porter V. Pico, 55 Cal. 165; simply personal, and the attachment pro- Tyrel's Heirs v. Rountree, 7 Pet. (U. S.) ceedings nugatory, in Indiana.
State ex 464: Wallace v. McConnell, 13 Pet. (U.S.) rel. 7'. Manly, 15 Ind. 8; Foster 7. Dryfus, 136; Van Loan v. Kline, 10 Johns. (N. Y.) 16 Ind. 158; McCollem v. White, 23 Ind. 129; Warden 2'. Adams, 15 Mass. 233. 43; Perkins v. Bragg, 29 Ind. 507; Moore If only general execution be issued, the 2. Jackson, 35 Ind. 360; Lowry 7. How- attachment is not thereby waived. Liebard, 35 Ind. 170; Gass v. Williams, 46 man v. Ashbacker, 36 Ohio St. 94. Ind. 253: Lowry z'. McGee, 75 Ind. 508; A writ of attachment, and an order of Smith v. Scott. 86 Ind. 346. The consum- publication notifying a non-resident theremation of the lien by the proceedings sub- of, having been issued against certain sequent to its incipiency is necessary. lands belonging to him, he made default; State ex rel. v. Miller, 63 Ind. 475; Excel- and general execution was issued, under sior, etc., Co. v. Lukens, 38 Ind. 438; which the sheriff levied upon the attached Lowry v. McGee, 75 Ind. 508.
lands, selling them to M. Hild, that
Final judgment against the garnishee, previously charged, cannot be rendered prior to that against the defendant.1
Though the judgment against the garnishee is a personal one, that against the property or credit in his hands is in rem when the principal defendant is not in court. But in several States it is
while there should have been judgment to Heisk. (Tenn.) 549; Matheney v. Earl, 75 be levied of the attached property, and a Ind. 531. If on appeal the defendant obspecial execution issued thereon, yet, as the tains a reversal of the judgment against property levied upon and sold was only himself, the garnishee is consequently rethat actually seized by the attachment, the leased, notwithstanding the judgment deed given by the sheriff to M. would be against himself was not appealed from by upheld, in ejectment against him by one him. Clough v. Buck, 6 Neb. 343. claiming under the non-resident. Burnett The garnishee, appealing, can assign as v. McCluey, 92 Mo. 230.
error whatever would make the judgment 1. Judgment Against the Garnishee. — void. Erwin v. Heath, 50 Miss. 795; Lee Final judgment must have been rendered v. Carrollton, S. & L. Asso., 58 Ind. 301; against the defendant or the attached - but he cannot set up such errors and property, or buth (as the statute in any regularities as the judgment against the State may require), before the previously defendant has cured, - Earl v. Matheney, charged garnishee can be finally adjudged 60 Ind. 202. to surrender his possession of the attach- Joint judgment against the defendant ment debtor's property for execution, or and garnishee is unlawful. Masters v. pay his debt due the defendant into court. Turner, io Phila. (Pa.) 482. Lee v. Ryall, 68 Ala. 354; Randolph '. The garnishee is protected by the judgLittle, 62 Ala. 376; Toledo R. Co. v. ment. Oppenheim v. Pittsburg, etc., R. Raynolds, 72 Ill. 487; Hoffman v. Simon, Co., 85 Ind. 491; Howard v. McLaughlin, 52 Miss. 302; Murdock v. Daniel, 58 Miss. 98 Pa. St. 440; McDonald v. Sincox, 98 411; Lingardtv. Deitz, 30 Ark. 224; Pa. St. 619: Woods v. Milford Savings Washburne v. New York, etc., Co., 41 Vt. Inst., 58 N. H. 184; Cottle v. Am. Screw 50; Rowlett v. Lane, 43 Tex. 174; Bush- Co., 13 R. I. 627. nell '. Allen, +8 Wis. 460; Bryan v. Dean, 2. Judgment in Rem.- A judgment 63 Ga. 317; Collins v. Friend, 21 La. Ann. against an absent debtor, not personally 7: Railroad v. Todd, u Heisk. (Tenn.) served and not appearing, on a process of 549; Langford v. Ottumwa Water-Power foreign attachment, can be enforced only Co., 53 Iowa, 415; Whorley v. M. & C. in rem against the effects in the hands of E. Co., 72 Ala. 20.
the garnishee, or against the debts due by The judgment against the garnishee is the garnishee to the judgment debtor. limited to the sum set forth in the writ. Beach v. Swift, 2 Conn. 274. Compare Hoffman v. Simon. 52 Miss. 302; Cairo, McBride y. Protection Ins. Co., 22 Conn. etc., R. Co. v. Killenburgh, 92 III. 142. 257. Such judgments are in form in"
Only such proceedings as would render personam, but in effect in rem. It is not the decree against the defendant void can necessary, however, to state in the affida. be urged by the garnishee to prevent the vit that the absent defendant has property final order against himself. Benson v. Hol- within the State. Kenney v. Georgen, 36 loway, 59 Miss. 358. If service has been admitted by the defendant, the garnishee A judgment that has been rendered in cannot oppose the decree for want of pro- an attachment suit against an absentee, cess against the defendant. Sadler v.
represented by a curator ad hoc, is one in Prairie Lodge, 59 Miss. 572.
rem, and not in personam. Huber v. Abnishee may insist that the specific sum bott (La.), 3 South. Rep. 259. claimed of him, and which he must pay, When the statute prescribes that the shall be stated in the final order. Randolph judgment must be in rem, if the attachment v. Little, 62 Ala. 396.
debtor, invited by publication, has not apThe judgment against the defendant peared and become a party. a neglect of may be valid, yet that against the gar- this requirement is fata!. The Iowa Code, nishee void, if the garnishment was fatal- $ 2881, so prescribing an attachment judgly defective. Greene v. Tripp, 11 R. I. ment was disregarded in a collateral suit 424. But the judgment against the gar- because the court which rendered it had nishee cannot be valid if that against the not obeyed the requirement. " The court defendant is void. Railroad v. Todd, il might have rendered a judgment in rem
so far treated otherwise as to allow the old foreign attachment right of appearance within “a year and a day," or some time stipulated by statute, for the purpose of giving security and defending the suit. And the old practice, under "the custom” of “ giving pledges to restore,” is virtually observed in States where the attaching creditor, after judgment, must give bond before sale.?
A personal decree, as in a mere action of debt, should be rendered when the plaintiff has made out his case against a non-resident who is in court, though the attachment may have failed.3
FOREIGN CONTRACT.-See CONFLICT OF LAWS, 3 AM. AND ENG. ENCYC. OF LAW, 499. but did not.” was said of the attachment Such bond, also, is required in Maryland, case when the purchaser of the property under like circumstances, — Dawson v. attached and sold was decided against in Contee, 22 Md. 27:—and the defendant is an action of ejectment. Smith v. Griffin, allowed a year and a day after the judg. 59 Iowa, 409. To the same effect: Lutz ment nisi, to come and defend the action 2. Kelly, 47 Iowa, 307; Hakes v. Shupe, on its merits,—Mears v. Andreon, 31 Md. 27 Iowa, 465, etc.
229;—but, when bond not required, see 1. Judgment Against Non-resident- Anderson v. Graff, 41 Md. 601. Held, When Final.-In some of the States, that bond by plaintiff was unnecessary afjudgment is not final against the non-ap
year and a day.” Wallace v. Forpearing foreign debtor till the lapse of a rest, 2 Har. & M. (Md.) 261. Sale with stipulated time: for instance, two years in out bond to restore,etc., byplaintiff was held Iowa. --Bond z'. Epley, 48 Iowa, 606; absolutely void, in Mississippi. Hiller 2. Code, $2877; McClain's Stat.;—within Lambkin, 54 Miss. 14. Stay order;" which time the judgment debtor may ap- Mulloy v. White, 3 Tenn. Ch. 9; Railroad pear and set aside the proceeding on proper v. Todd, ni Heisk. (Tenn.) 549. showing. And, in Nebraska, the judgment 3. Personal Decree.-It has been held, may be thus opened within five years in in Virginia, that an attaching creditor, such case. Savage v. Aiken, 14 Neb. 315. proving his debt, is entitled to a personal And see, for Wisconsin law, Berry v. Nel decree against his absent debtor, though son, 4 Wis. 91; Berry v. Doty, 5 Wis. 605. the property attached may be adjudged to And there is lihe provision in Minnesota. another defendant. Schofield a Cox, 8 And, in Tennessee, there is a "stay. Gratt. (Va.) 533; Williamson v. Gayle, 7 order” in the judgment. Mulloy v. White, Gratt. (Va.) 152; O'Brien v. Stephens, 11 3 Tenn. Ch. 9. In Mississippi, the time is Gratt. (Va.) 610. (But the court must
a year and a day." Hiller ?. Lambkin, have jurisdiction over the person of the *54 Miss. 14. Similar provisions may be defendant.] found in the statutes of New Jersey and It was held, in Michigan, that a judgseveral other States.
ment by default, against a non-resident, 2. Bond by Plaintiff Before Sale.—İn served out of the State, authorizes garnishK’entucky, an order for the sale of proper- ment proceedings to reach his property ty attached, in which the defendant has not within the State. (Campbell, J., dissenting) been served and has not appeared, but Moore v. Speed, 55 Mich 84. merely notified, cannot be made until the Authorities.—Locke on Foreign Attachplaintiff has executed a bond to secure the ment; Brandon on Foreign Attachment: defendant, as required by statute.
Cowen on Attach.; Drake on Attach. (oth Johnson, I Metc. (Ky.) 652; Harris v. Ed.); Waples on Attach. & Garn.; KneeAdams, 2 Duv. (Ky.) 142. So in Virginia. land on Attach.; Wade on Attach.; Waples Anderson v. Johnson, 32 Gratt. (Va.) 558. on Proceedings In Rem, Book IV.,Ch. LV.