Bump v. Dehany

Hardin, P. J. Under section 2906 of the Code of Civil Procedure the plaintiff, in order to entitle himself to an attachment, was required to show by affida vit, to the satisfaction of the j ustice, that the defendant “ had depar , or is about to depart, from the county where he last resided, with intent to "defraud his creditors, or to avoid the service of a summons; or keeps himself concealed with the like intent.” We think the affidavit was insufficient. In Thompson v. Later, 10 N. Y. Supp. 613, it was said: “Attachments are not to be granted on beliefs and suspicions. They operate to give an advantage to one creditor over others; and some wrongful act, or the evident intent to do some wrongful act, must be shown to justify them.” In Morris v. Talcott, 96 N. Y. 107, it was said: “A party, therefore, relying upon the establishment of a cause of action or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt, in-order to maintain his claim.” We are therefore of the opinion that 903 the justice committed an error in denying the several motions made to vacate the attachment. The question therefore arises, what is the effect upon the judgment rendered by the justice? Assuming, as we do, that the justice ought to have granted the motion to vacate the attachment, still, as the summons was personally served, he had jurisdiction of the defendant and of the subject-matter, and was authorized to hear the proofs and give judgment thereon. It is provided in section 2917 of the Code of Civil Procedure, viz.: “Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action, or where the summons was personally served upon him.” Had the justice vacated the attachment in virtue of the section we have just adverted to, the justice would still have had j urisdiction “to hear and determine the action,” as there had been a personal service of the summons. In section 2918 it is provided that where the summons has not been personally served, or where the defendant has not appeared, and the property has been attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action. In such cases the execution issued and the judgment so rendered “must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property.” We think the error committed by the justice in refusing to vacate the attachment ought not, under the circumstances, to vitiate the judgment rendered upon the merits. We are therefore of the opinion that the county court, being called upon to render a judgment on appeal without regard to technical errors or defects which do not affect the merits, should have pronounced a judgment declaring the attachment invalid. Section 3063, Code Civil Proc. That section provides that the county court “may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact.” We are therefore of the opinion that the judgment of the county court should be modified so as to adjudge that the attachment issued by the justice be vacated, and that the judgment of the justice court on the merits should be affirmed. All concur.