Manice v. Gould — 1 Abb. Pr. 255

Majority

p. 255

MANICE against GOULD.

Supreme Court, First District ;

Special Term, February, 1866.

Headnote

Attachment.—Appearance.

Defendant may move to set aside an attachment against his property without putting in a general appearance in the action.

Motion to discharge an attachment.

The plaintiffs, William D. F. Manice and Benjamin 0. Wet-more, sued as executors, and upon an affidavit that the defendant, Mary E. Gould, was a- non-resident, having property within the State, obtained an attachment against her property.

She now moved to set aside the attachment, upon the • original papers on which it was obtained. She did not appear generally, in the action, but. only for the purposes of the motion.

Brown, Hall & Vanderpoel, for the plaintiffs,

objected that defendant could not move till after she had appeared in the action.

p. 256

Flamen B. Candler and Edgar S. Van Winkle, for the motion.

—I. The defendant may, after appearance, move to discharge the attachment (§ 240), hut he may in all cases move to discharge it, as in the case of other provisional remedies (§ 241). The larger license controls the smaller. Since a non-resident cannot appear in person, he can through an attorney act in those cases where personally he could without an appearance move to discharge any process.

When it is intended to remove a suit from a State- court into the United States courts on account of jurisdiction, a special or modified appearance is allowed (Field v. Blair, 1 Code R. [N. S.], 292, 361; Durand v. Holland, 3 Duer, 686 ).

And this because, otherwise, as a voluntary appearance would be a waiver of objection to the jurisdiction, the steps taken to protect his rights would forfeit them.

A voluntary and general appearance, besides being equivalent to a personal service of the summons (Code, § 139) is a waiver of all defects in the summons as previous proceedings (Webb v. Mott, 6 How. Pr., 439 , and other cases cited under § 139 in Voorhies’ Code).

If, in case of an unauthorized attachment against a non-resident, the defendant must put in a general appearance before he can move to discharge it, the consequence is, that the plaintiff by bis wrongful act compels the defendant to give the court jurisdiction and control of the subsequent proceedings, for the court has such jurisdiction and control from the time of the service of the summons, and a voluntary appearance is equivalent to personal service of the summons.

The effect will be that although the attachment may be set aside, the plaintiff can go on and obtain a judgment which he is not entitled to; for in cases of service of summons by publication he can only take judgment against a non-appearing defendant, for the property originally attached, arid if in this .case he has no right to an attachment he could have no judgment' at all, except through the appearance of the defendant wrongfully obtained.

A party can move ex parte to discharge an arrest, or to vacate an injunction, or to reduce bail: arrest, attachment, claim and delivery are all provisional remedies (Code, title VII, part 2).

p. 257

May not an attorney appear as amicus curiœ?

As in case of other provisional remedies (§ 241), a defendant may at any time before judgment apply on motion to vacate the order of arrest, or to reduce the amount (§ 206).

If application to vacate the order of arrest be made to the judge who granted the order, it may be made ex parte (Cayuga Bank v. Warfield, 13 How. Pr., 439 , also to vacate an injunction (Bruce v. Del. & H. C. Co., 8 How. Pr., 440 ; Rogers v. McElhone, 12 Abb. Pr., 292 ; 20 How. Pr., 441 ; Dickinson v. Benham, 12 Abb. Pr., 158 ).

II. Ho attachment can issue against a non-resident, except in an action for the recovery of money (Code, § 227; Shaffer v. Mason, 18 Abb. Pr., 455 . See also Gordon v. Gaffey, 11 Abb. Pr., 1 ; Wallace v. Hitchcock, 18 Abb. Pr., 291 , note; Knox v. Mason, 18 Abb. Pr., 290 ; Kerr v. Mount, 28 N. Y., 664 ; Ackroyd v. Ackroyd, 11 Abb. Pr., 345 .

III. Where, as in this case, the motion is founded solely upon the weakness, or insufficiency of the case made by the plaintiffs on their application to the judge for the warrant, the attachment must stand or fall upon the facts originally presented to the judge upon such application, and no new or further affidavits can be introduced (Hill v. Bond, 22 How. Pr., 272 ; St. Armant v. De Beixcedon, 3 Sandf. S. Ct., 703 ; Morgan v. Avery, 2 Code R., 92, 121).

If the affidavit is insufficient, the attachment must be set aside (Dickinson v. Benham, 19 How. Pr., 410 ; S. C., 12 Abb. Pr., 158 ; affirmed 18 Abb. Pr., 455 ; Brewer v. Tucker, 13 Abb. Pr., 76 ).

IY. The affidavit is insufficient in this, that it does not appear thereby that a cause of action exists against the defendant. - It is only stated therein that the plaintiffs,- as executors, have a cause of action against the defendant, and does not state that the will has been proved before, or letters testamentary issued to plaintiffs, by a surrogate or other officer withm this State, authorized to take such proof, or issue such letters (Sheldon v. Hoy, 11 How. Pr., 11 . See Wheeler v. Dakin, 12 Id., 537; Bangs v. McIntosh, 23 Barb., 591 ; Gillet v. Fairchild, 4 Den., 80 ; White v. Low, 7 Barb., 204 ).

Y. The affidavit does not present legal proof, to wit, facts; but only a conclusion of law.

I agree with the counsel of the defendant, that the provision in section 241 dispenses with the requirement in section 240.

Motion to discharge attachment granted, without costs.