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still observed, appearance does not now operate the dissolution of the attachment.1
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 dismissed 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.a
1. Appearance of the Debtor.-In Pennsylvania, where foreign attachment was formerly deemed dissolved upon the appearance of the defendant, and his giving bail, it is held that his appearance, and judgment against him by agreement, does not release the garnishee nor dissolve the attachment. Littell v. Scranton Company, 42 Pa. St. 500. In this case the court explained the change in the law of the State by which the practice was made to differ from the former method of foreign attachment to compel appearance and the giving of bail.
For special and general appearance in attachment suits, see Waples on Attach. & Garn., pp. 388-394.
2. Appearance by Attorney.-In a foreign attachment suit before a justice of the peace in Arkansas, an attorney ad litem was appointed by the justice for the defendant. There was judgment for the plaintiff, and the attached property-land -was sold. The purchaser sued the occupant in ejectment and recovered; but, upon appeal, it was held that the appearance of the attorney ad litem in the attachment case did not give the justice jurisdiction over the attachment defendant. It was held, further, however, that the court trying the ejectment suit should have admitted offered evidence to show that the attachment defendant ratified the appointment of the attorney ad litem, by himself engaging the same attorney. Visart v. Bush, 46 Ark. 153.
The appearance of an authorized attorney cures defects of service on a foreign corporation. Weed Sewing-Machine Co. v. Boutelle, 56 Vt. 570.
3. Non-resident Unserved Specially Appearing to Dismiss Attachment in U. S. Court The Des Moines & Minn. R.Co., an Iowa corporation.sued John B. Alley, of Mass., for about $100.000, and asked attachment against his property in Iowa
as that of a non-resident, filing the sworn complaint and bond, as required. The writ issued and shares of stock were at tached, and Alley returned not found." Affidavit of his non-residence was then filed and application for publication made. Alley appeared specially, by attorney, and filed a special plea to the jurisdiction, and moved the dismissal of the suit. The court sustained the motion. Mandamus was then asked of the U. S. supreme court to compel the circuit court to reinstate the cause and order the publication, and was refused. Waite, C. J., for the court, said:
Under § 739 of the revised statutes, no civil suit not local in its nature can be brought in the circuit court of the United States against an inhabitant of the United States, by original process, in any other State than that of which he is an inhabitant or in which he is found on serving the writ. It is conceded that the person against whom this suit was brought in the circuit court was an inhabitant of the State of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the circuit court of the district of Iowa, and, unless he could be sued, no attachment could issue from that court against his property." Ex parte Railway Co., 103 U. S. 794.
4. Appearance to Change Venue -An action was commenced against a nonresident, and property attached in a county other than that in which the suit was instituted. The defendant specially appeared and moved for a change of venue to the county in which his property had been attached. The motion was granted. Held, that the attachment lien was good from the date of the levy, and outranked that of another attachment brought, prior to the change of venue, in the county to which the first-mentioned 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 court a quo.1
county. Laird Bros. v. Dickerson, 40 Iowa, 665. Compare Courtney v. Carr, 6 Iowa, 238.
Under Wisconsin Laws, 1880, ch. 222, a sheriff cannot make constructive levy upon logs on Chippewa river and its branches, in another county. Shafer z. Hogue (Wis.), 35 N. W. Rep. 928.
1. Appearance Pending the Suit and Before Sale.-Defendant in a foreign attachment may appear pending the suit, tender security for costs, and have it reheard, under the Virginia Code 1873, ch. 148. $ 27.
Chilton, in 1878, sued out foreign attachments against Smith & Wimsatt, nonresidents, and L., home defendant. The original summons was served on L.. and, as to S. & W., was returned, "S. & W. non-residents." After the return day another summons was returned, indorsed, "Hereby we acknowledge legal service of the within," which acknowledgment was made in the District of Columbia. 1879, sale of the attached effects was decreed. In 1880, before the decree was executed, S. & W. appeared and petitioned that the cause be reheard. Held, on appeal, that the acknowledgment of service out of the jurisdiction was only equivalent to posting or publication notice; that the defendants non-resident could appear, at any time within five years from the date of the decree, to have the cause reheard. Smith v. Chilton, 77 Va. 535.
2. Appearance After Judgment.-A non-resident insurance company was sued by a citizen of Virginia, in his own State, on a contract made outside of the State. On his affidavit that the company is a non-resident corporation having effects in P. county of his State, attachment was issued to levy upon those effects,
and publication made. Judgment was rendered April, 1878, against the corporation defendant. In September, 1878, the defendant petitioned the court to reopen the case, which was allowed under the statute (ch. 148, § 27), and then the case was removed to the U. S. circuit court on the ground that it was between citizens of different States. Smith v. Life Association of America, 76 Va. 380.
The unserved non-resident defendant may appear at any time pending the suit (in Virginia), and, tending security for costs, have an attachment cause reheard. Anderson v. Johnson, 32 Gratt. (Va.) 558. 3. Appearing and Bonding, etc.-The defendant, having replevied a bark attached as the property of non-resident debtors, by executing a bond and security to satisfy the judgment if rendered for plaintiff, the court held that the vessel was released from the lien of attachment, and the attachment itself dissolved, and the action rendered an ordinary one at common law. Walter v. Kierstead, 74 Ga.19.
After general appearance, the defendant in foreign attachment has the same rights of defence, of bonding the property attached, of appeal, and of recovering damages for a wrongful levy as in domestic attachment. So these subjects do not specially belong to this branch of the general subject. The authorities are applicable to both.
4. Appeal. In a foreign attachment. held, that the absent defendant, who does not appear in the court below, cannot appeal; but that, there being two absent defendants sued for a joint debt, one of whom appears and answers, and, there being a joint decree against both, upon the appeal of the one who did appear the decree may be reversed as to both. 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 may be."
1. Judgment with Privilege.- Personal judgment is held to imply a recognition of the lien created by attachment, though the privilege be not expressed. Betancourt v. Eberlin, 71 Ala. 461, 467; Waynant v. Dodson, 12 lowa, 22; Coleman 7. Waters, 13 W. Va. 278.
But not if the attachment has been dissolved, or if the final decree shows that no privilege upon the property attached is meant to be conferred. Wasson v. Cone, 86 Ill. 46; Love v. Voorhies, 13 La. Ann. 549.
On the other hand, it has been held that the decree should award special execution on the property attached, in order to preserve the lien,-Johnson v. Holley, 27 Mo. 595;-though the form of the judgment may be changed to effect this result regarding the lien.-Massey v. Scot, 49 Mo. 278. But, in Missouri, the judgment is not special if the attachment defendant has made himself a party. Jones v. Hart, 60 Mo. 351: Huxley 7. Hurrold, 62 Mo. 516; Philips v. Stewart, 69 Mo. 149; Borum 7. Reed, 73 Mo. 461; Maupin v. Lead-Mining Co., 78 Mo. 24.
If there is no recognition of the attachment, expressed or implied, in the decree, and no special execution, the judgment is simply personal, and the attachment proceedings nugatory, in Indiana. State ex rel. v. Manly, 15 Ind. 8; Foster 7. Dryfus, 16 Ind. 158; McCollem v. White, 23 Ind. 43. Perkins v. Bragg, 29 Ind. 507; Moore v. Jackson, 35 Ind. 360; Lowry v. How ard, 35 Ind. 170; Gass 7. Williams, 46 Ind. 253: Lowry . McGee, 75 Ind. 508; Smith 2. Scott. 86 Ind. 346. The consummation of the lien by the proceedings subsequent to its incipiency is necessary. State ex rel. v. Miller, 63 Ind. 475; Excelsior, etc., Co. v. Lukens, 38 Ind. 438; Lowry v. McGee, 75 Ind. 508.
Formal recognition of the lien, in the judgment, is not necessary in all the States; and since the attachment suit is nominally in personam, the judgment may be nominally so, yet really be in rem. Even in Missouri, sureties cannot avail themselves of the lack of judgment "with privilege" and special execution, if the attached property has been executed after the sustaining of the attachment. Thole v. Watson, 6 Mo. App. 591.
2. The Judgment Perfects the Lien.The lien is perfected by judgment which is retroactive in effect upon the levy. Goodwin 7. Richardson, II Mass. 475: Cushing v. Hurd, 4 Pick. (Mass.) 253: Coffin Ray, I Metc. (Mass.) 212; Van Loan v. Kline, 10 Johns. (N. Y.) 129; Tennant v. Battey, 18 Kan. 324; Scarborough 7. Malone, 67 Ala. 570.
Prior to judgment, the lien cannot be asserted in a separate action to set aside a conveyance by the debtor-owner of the property on which the inchoate lien is being created. Tennant v. Battey, 18 Kan. 324.
The judgment perfects the lien, and renders it complete from its incipiency; and it may be vindicated upon the property attached. Porter 7. Pico, 55 Cal. 165; Tyrel's Heirs v. Rountree, 7 Pet. (U. S.) 464; Wallace v. McConnell, 13 Pet. (U.S.) 136; Van Loan v. Kline, 10 Johns. (N. Y.) 129; Warden 7. Adams, 15 Mass. 233.
If only general execution be issued, the attachment is not thereby waived. Liebman v. Ashbacker, 36 Ohio St. 94.
A writ of attachment, and an order of publication notifying a non-resident thereof, having been issued against certain lands belonging to him, he made default; and general execution was issued, under which the sheriff levied upon the attached lands, selling them to M. Held, 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 be levied of the attached property, and a special execution issued thereon, yet, as the property levied upon and sold was only that actually seized by the attachment, the deed given by the sheriff to M. would be upheld, in ejectment against him by one claiming under the non-resident. Burnett v. McCluey, 92 Mo. 230.
1. Judgment Against the Garnishee.Final judgment must have been rendered against the defendant or the attached property, or both (as the statute in any State may require), before the previously charged garnishee can be finally adjudged to surrender his possession of the attachment debtor's property for execution, or pay his debt due the defendant into court. Lee v. Ryall, 68 Ala. 354: Randolph v. Little, 62 Ala. 376, Toledo R. Co. v. Raynolds, 72 Ill. 487; Hoffman v. Simon, 52 Miss. 302; Murdock v. Daniel, 58 Miss. 411; Lingardt v. Deitz, 30 Ark. 224; Washburne v. New York, etc., Co., 41 Vt. 50; Rowlett v. Lane, 43 Tex. 174; Bushnell v. Allen, 48 Wis. 460; Bryan v. Dean, 63 Ga. 317; Collins v. Friend, 21 La. Ann. 7: Railroad v. Todd, 11 Heisk. (Tenn.) 549; Langford v. Ottumwa Water-Power Co., 53 Iowa, 415; Whorley v. M. & C. E. Co., 72 Ala. 20.
The judgment against the garnishee is limited to the sum set forth in the writ. Hoffman v. Simon. 52 Miss. 302; Cairo, etc., R. Co. v. Killenburgh, 92 Ill. 142. Only such proceedings as would render the decree against the defendant void can be urged by the garnishee to prevent the final order against himself. Benson v. Holloway, 59 Miss. 358. If service has been admitted by the defendant, the garnishee cannot oppose the decree for want of process against the defendant. Sadler v.
Prairie Lodge, 59 Miss. 572. The garnishee may insist that the specific sum claimed of him, and which he must pay, shall be stated in the final order. Randolph v. Little, 62 Ala. 396.
The judgment against the defendant may be valid, yet that against the garnishee void, if the garnishment was fatally defective. Greene v. Tripp, 11 R. I. 424. But the judgment against the garnishee cannot be valid if that against the defendant is void. Railroad v. Todd, I
Heisk. (Tenn.) 549; Matheney v. Earl, 75 Ind. 531. If on appeal the defendant obtains a reversal of the judgment against himself, the garnishee is consequently released, notwithstanding the judgment against himself was not appealed from by him. Clough v. Buck, 6 Neb. 343.
The garnishee, appealing, can assign as error whatever would make the judgment void. Erwin v. Heath, 50 Miss. 795; Lee v. Carrollton, S. & L. Asso., 58 Ind. 301, -but he cannot set up such errors and regularities as the judgment against the defendant has cured,-Earl v. Matheney, 60 Ind. 202.
Joint judgment against the defendant and garnishee is unlawful. Masters v. Turner, 10 Phila. (Pa.) 482.
The garnishee is protected by the judgment. Oppenheim v. Pittsburg, etc., R. Co., 85 Ind. 491; Howard v. McLaughlin, 98 Pa. St. 440; McDonald v. Sincox, 98 Pa. St. 619: Woods v. Milford Savings Inst., 58 N. H. 184; Cottle v. Am. Screw Co., 13 R. I. 627.
2. Judgment in Rem.-A judgment against an absent debtor, not personally served and not appearing, on a process of foreign attachment, can be enforced only in rem against the effects in the hands of the garnishee, or against the debts due by the garnishee to the judgment debtor. Beach v. Swift, 2 Conn. 274. Compare McBride v. Protection Ins. Co., 22 Conn. 257. Such judgments are in formin' personam, but in effect in rem. It is not necessary, however, to state in the affidavit that the absent defendant has property within the State. Kenney v. Georgen, 36 Minn. 190.
A judgment that has been rendered in an attachment suit against an absentee, represented by a curator ad hoc, is one in rem, and not in personam. Huber v. Abbott (La.), 3 South. Rep. 259.
When the statute prescribes that the judgment must be in rem, if the attachment debtor, invited by publication, has not appeared and become a party, a neglect of this requirement is fata!. The Iowa Code, § 2881, so prescribing an attachment judgment was disregarded in a collateral suit because the court which rendered it had not obeyed the requirement. The court 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.2
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 case when the purchaser of the property attached and sold was decided against in an action of ejectment. Smith v. Griffin, 59 Iowa, 409. To the same effect: Lutz v. Kelly, 47 Iowa, 307; Hakes v. Shupe, 27 Iowa, 465, etc.
1. Judgment Against Non-residentWhen Final.-In some of the States, judgment is not final against the non-appearing foreign debtor till the lapse of a stipulated time; for instance, two years in Iowa-Bond v. Epley, 48 Iowa, 606; Code, 2877: McClain's Stat.;-within which time the judgment debtor may appear and set aside the proceeding on proper showing. And, in Nebraska, the judgment may be thus opened within five years in such case. Savage v. Aiken, 14 Neb. 315. And see, for Wisconsin law, Berry v. Nelson, 4 Wis. 91; Berry v. Doty, 5 Wis. 605. And there is like provision in Minnesota. And. in Tennessee, there is a stayorder" in the judgment. Mulloy v. White, 3 Tenn. Ch. 9. In Mississippi, the time is a year and a day." Hiller. Lambkin, 54 Miss. 14. Similar provisions may be found in the statutes of New Jersey and several other States.
2. Bond by Plaintiff Before Sale.-In Kentucky, an order for the sale of property attached, in which the defendant has not been served and has not appeared, but merely notified, cannot be made until the plaintiff has executed a bond to secure the defendant, as required by statute. Johnson, I Metc. (Ky.) 652; Harris v. Adams, 2 Duv. (Ky.) 142. So in Virginia. Anderson v. Johnson, 32 Gratt. (Va.) 558.
Such bond, also, is required in Maryland, under like circumstances, -Dawson v. Contee, 22 Md. 27;—and the defendant is allowed a year and a day after the judgment nisi, to come and defend the action on its merits,-Mears v. Andreon, 31 Md. 229:-but, when bond not required, see Anderson v. Graff, 41 Md. 601. Held, that bond by plaintiff was unnecessary_after a year and a day." Wallace v. Forrest, 2 Har. & M. (Md.) 261. Sale without bond to restore, etc., by plaintiff was held absolutely void, in Mississippi. Hiller v. Lambkin, 54 Miss. 14. Stay order:" Mulloy v. White, 3 Tenn. Ch. 9; Railroad v. Todd, II Heisk. (Tenn.) 549.
3. Personal Decree.-It has been held, in Virginia, that an attaching creditor, proving his debt, is entitled to a personal decree against his absent debtor, though the property attached may be adjudged to another defendant. Schofield & Cox, 8 Gratt. (Va.) 533; Williamson v. Gayle, 7 Gratt. (Va.) 152; O'Brien v. Stephens, II Gratt. (Va.) 610. [But the court must have jurisdiction over the person of the defendant.]
It was held, in Michigan, that a judgment by default, against a non-resident, served out of the State, authorizes garnishment proceedings to reach his property within the State. (Campbell, J., dissenting) Moore v. Speed, 55 Mich 84.
Authorities.-Locke on Foreign Attachment; Brandon on Foreign Attachment; Cowen on Attach.; Drake on Attach. (6th Ed.); Waples on Attach. & Garn.; Kneeland on Attach.; Wade on Attach.; Waples on Proceedings In Rem, Book IV.,Ch. LV. 328