Orser v. Grossman — 4 E.D. Smith 443

Majority

p. 443

John Orser, Sheriff, &c., v. Moses Grossman.

Headnote

The provision, in § 235 of the Code, to the effect that a debt due by a third person to a non-resident debtor, may be attached by serving the warrant upon such person; is not complied with by leaving the warrant with a man in his store, without proof that it ever came to the possession or knowledge of the person for whom it was intended.

The remedy is extraordinary, operating in substance as an assignment by the absent debtor to the sheriff, and the statute should be strictly pursued.

Whether a general notice that the sheriff attaches all property of the debtor in the hands of the person served, is a valid attachment, without specifying the particular property designed to be reached ? Dub.

The propriety of an amendment granted in the court below upon the appellant’s motion, will not be reviewed upon Ms appeal.

Action by the sheriff, to recover money due by the defendant to certain non-resident debtors, against whose property proceedings had been taken by attachment issued out of the Supreme Court, under chap, four of the second part of the Code of Procedure. The defence relied upon related to the mode wherein the sheriff proceeded upon executing the warrant of attachment. The objections to the regularity of his proceedings are discussed in the opinion.

The Marine Court awarded judgment in favor of the defendant. The plaintiff appealed.

John M. Martin, for the plaintiff.

John H. Lee, for the defendant.

By the Court.

The propriety of the amendment of the summons, allowed by the court below, does not properly come in question on this appeal. The amendment was granted on the motion of the appellant, and the order does not come under review upon his appeal from the judgment.

p. 444

It is questionable whether a general notice, that the sheriff attaches all property in the hands of the debtor of the defendants in attachments, is a sufficient attachment under the Code. Section 235 seems to contemplate the service of a notice, specifying the particular property levied on; and section 236 furnishest he means of obtaining a disclosure of all the particulars necessary to enable the sheriff to describe the property levied upon, with all due particularity. If such disclosure be refused, it may be compelled. If a false certificate is given, no doubt an action would lie for the deceit practiced.

But I am of opinion that the amount due from the present defendant to the non-resident debtor was not attached at all, because the attachment was not served on the defendant, as directed in § 235.' It was left with a man in the defendant’s store, and no evidence was given that it ever came to the knowledge of the defendant. The suggestion that it may often be difficult to find the party to be served, is of no more force than if it were urged as a reason for not serving a summons on a defendant personally. The requirement that he shall give the sheriff a certificate, &c., (§ 236,) clearly indicates that the notice is to be served on him.

Nothing in the statute warrants the idea that it may be served on an agent. It should, I think, be served on the person who owes the debt sought to be attached.

The remedy is extraordinary; it is to operate in substance like an assignment by the absent debtor to the sheriff, and I think the statute should be strictly pursued.

Upon this ground I think the judgment must be sustained. If the judgment in the original suit is still in force, there can be no difficulty in compelling the application of the money in the defendant’s hands towards the payment, by proceedings supplementary to execution, unless some other rights have intervened.

Judgment affirmed.