Hambley v. . White

Stacy, C. J., after stating tbe case: We bave no hesitancy in affirming tbe judgment in so far as.it requires tbe First National Bank of Jackson, Tenn., to come in and litigate its. claim, if any it has, to tbe funds held under attachment in tbe present proceedings. Temple v. Hay Co., 184 N. C., 239; Freeman v. Howe, 65 U. S., 450. Tbe general rule is, that one claiming a paramount right to property taken in attachment, which, if valid, would defeat tbe plaintiff’s suit, must assert such right in tbe court first acquiring jurisdiction over tbe property. Taylor v. Carryl, 61 U. S., 583; Peck v. Jenness, 48 U. S., 612; Metzner v. Graham, 57 Mo., 404. Likewise, in this jurisdiction at least, where several attachments bave beén levied on tbe same property, under processes issued by a number of Superior Courts, each having general and concurrent jurisdiction over tbe matter, which must inevitably result in a contest among tbe different creditors as to their respective rights of priority, we think it is within tbe power of tbe court, first acquiring jurisdiction of the property by seizure and attachment, to require tbe questions of priority, likely to arise among tbe attaching creditors, to be determined in that court. Patrick v. Baker, 180 N. C., 588; Metzner v. Graham, supra; Bank v. Steinberg, 44 Mo. App., 401. And in regard to such creditors, tbe law is, first in time of attachment, first in right, so far as tbe property attached is concerned (Kittredge v. Bellows, 7 N. H., 428; Peck v. Jenness, supra), except where two or more attachments are delivered to tbe sheriff at tbe same time, served simultaneously on tbe same property, and judgments rendered in favor of both or all of such creditors, tbe funds remaining after satisfaction of all prior attachments will be applied pro rata, when they are insufficient to pay tbe judgments of tbe simultaneously attaching creditors in full. Freeman v. Grist, 18 N. C., 217. *34 In an attachment of personal property, the sheriff, upon the service of the writ, takes possession of the property attached, and thus acquires a special interest therein, which he may enforce for the protection of the rights of all concerned. Peck v. Jenness, 48 U. S., 612. Subsequent attachments may be levied on the same property by the same sheriff, and where there are several attachments, the attaching creditors acquire a right to priority of satisfaction, so far as the property attached is concerned, not by right of priority of judgment, but by right of priority of attachment. C. S., 807; Granite Co. v. Bank, 172 N. C., 354; Bank v. Watson, 187 N. C., 107; Norman v. Hallsey, 132 N. C., 6; Poole v. Symonds, 1 N. H., 292; Clarke v. Morse, 10 N. H., 238. Attachment partakes of the nature of an execution before judgment (Johnson v. Whilden, 166 N. C., 104) ; and as the lien begins with the levy of the attachment (McMillan v. Parsons, 52 N. C., 163), it is subject to all others of prior date and superior to those of subsequent date. Morehead v. R. R., 96 N. C., 362. As remarked by Mr. Justice Matthews in Freedman's S. & T. Co. n. Earle, 110 U. S., 717, “It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority.” See, also, Kittredge v. Emerson, 15 N. H., 227, and Kittredge v. Warran, 14 N. H., 509, where the whole subject of attachment is fully considered by the New Hampshire Superior Court of Judicature. This, however, need not deprive the parties of the right to proceed to judgment in the courts of their respective counties, and in such actions, those who claim the property by superior or paramount title should come-in as interveners or be brought in as defendants, so that their claims may be properly adjudicated. C. S., 829; Patrick v. Baker, 180 N. C., 588; Evans v. Aldridge, 133 N. C., 378; In re Snell, 125 Fed., 154. Speaking to a similar situation in Peck v. Jenness, supra, Mr. Justice Grier observed that, “where the jurisdiction of a.court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot. be arrested or taken away by proceedings in another court. . . . For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other.”. See, also, Metcalf v. Baker, 187 U. S., 165, and White v. Schloerb, 178 U. S., 542. And so, the garnishee, in each succeeding case, should set up as a defense, either absolute or pm tanto, that a prior attachment has been levied on the property in its hands belonging to the principal defendant (12 R. C. L., 835; 28 C. J., 286) and should also notify any adverse claimant to come in by intervention and make good its claim to the property attached. Temple v. Hay Co., 184 N. C., 239; Garity v. Gigie, 130 Mass., 184; 12 R. C. L., 825. But the first court of general juris *35 diction taking possession o£ tbe property may bold it and disburse tbe funds according to tbe respective rights of tbe parties as they may be made to appear in that court, on tbe question of priority. Lemly v. Ellis, 143 N. C., 200; Bank v. Steinberg, supra. If tbis course be not pursued in tbe instant case a serious wrong may be inflicted on tbe Bank of Alexander, tbe garnishee, as a portion of tbe attached funds is represented by bond given only in tbe present proceeding. Martin v. McBryde, 182 N. C., 175; Patrick v. Baker, 180 N. C., 588; 28 C. J., 303. We have not overlooked tbe learned opinion of Mr. Justice Miller in Buck v. Colbath, 70 U. S., 334, wherein be classifies tbe different writs, or processes óf tbe court, and points out with particularity tbe distinction between replevin and attachment; nor is tbe position here taken necessarily at variance with what is said in that opinion. Sometimes, in a case of first impression, tbe court finds it necessary to mold its decrees to meet tbe exigencies of tbe particular case. McNinch v. Trust Co., 183 N. C., 33. As herein, modified and interpreted, tbe order appealed from will be upheld. Modified and affirmed.