First National Bank v. Ragan

Bleckley, Chief Justice. 1. From the whole tenor and phraseology of the act of Feb. 21st, 1873 (Code, §§3297, 3298 et seq.), it is manifest that no authority for ordering or issuing attachments against debtors on the ground of fraud was intended to be conferred except as to attachments returnable to the superior court. True, that court is not expressly mentioned as the one to which the attachments are to be returnable, but we think that court and it alone was in contemplation. It surely was not the purpose of the statute for the judge of the superior court to prepare 335 business for justices’ courts, city courts, and all others which might have jurisdiction over ordinary attachments. The act, as shown by §3301 of the code, made the decision of the judge granting an attachment or refusing it subject to review by this court. Can it be supposed that the legislature intended to make preliminary orders passed by a judge of the superior court, on business returnable to and triable in a justice’s court, matter for review by the Supreme Court? Could the legislature do so, if such was its purpose, in view of the provisions of the constitution (Code, §5133) which makes this a court alone for the trial and correction of errors from the superior courts and from city courts ? As the act makes provision for carrying to this court any decision of the j udge granting or refusing an attachment, it is evident that the legislature intended the power of review to apply to all cases which the act provides for, and it could not apply to all constitutionally unless all were regarded as business pertaining to the superior court, and this could not be if some of the attachments could or might be made returnable to other courts. Another consideration tending to show that the business contemplated was superior court business only, is, that after property has been attached without a hearing, the defendant in attachment may apply to the j udge to dissolve or remove the attachment wholly or partially, and on this application the judge is empowered to act, so that even after the attachment has been levied it is treated as still under the jurisdiction of the judge of the superior court who ordered it to issue. Code, §3299. Could it have been the purpose of the act to have that judge pass upon the levies which had been made on attachments returnable to the justices’ courts or other jurisdictions, such as city and county courts? "We are convinced that no such scheme was or could have been in the legislative mind. The judges of the superior courts were clothed 336 with the powers conferred by this act because they were in the nature of equity powers, and equity powers had always been confided in this State to the superior courts and to none others. The local act applicable to the city court of Floyd county (Acts of 1882-8, p. 534) does not, if it could, trench upon the general law touching this class of attachments. The attachments of which it speaks and to which it refers are ordinary attachments, not these special and, as they might be called, equity attachments, which the judges of the superior courts alone are empowered to grant. 2. It was contended that, although the attachments .as such might be void, the city court had power to render valid general judgments in the cases by virtue of §§3309, 3328 of the code, Holt, the defendant in attachment having appeared in the city court and traversed the ground on which the attachment issued. The first of these sections says that “no declaration shall be dismissed because the attachment may have been dismissed or discontinued, but the plaintiff shall be entitled to judgment on the declaration filed, as in other cases at common law, upon the merits of the case.” The latter is in these words : “"When the defendant has given bond and security, as provided in section 3319 of this code, or when he has appeared and made defence by himself or attorney at law, or when he has been cited to appear, as provided in section 3309 of this code, the judgment rendered against him in such case shall bind all his property, and shall have the same force and effect as when there has been personal service, and execution shall issue accordingly, but it shall be first levied upon the property attached. In ali other cases, the judgment on the attachment shall only bind the property attached, and the judgment shall be entered only against such property.” But these were not such attachments as that any declarations in the city court founded upon them could 337 have been legally filed. That court had no jurisdiction of the attachments and consequently no j urisdiction of the declarations which were based upon them. The defendant could not be.brought into the city court by that means. If he chose to come voluntarily and thereby waive the question of jurisdiction, he could do so, by virtue of §3460 of the code, so far as his own rights were concerned, but not so as to prejudice third persons. As this section has been construed in cases heretofore decided by this court, other creditors of his are to be considered as third persons, and as they cannot be prejudiced by his waiver in respect to jurisdiction, their general judgment liens against his property are to be treated just as though the judgment requiring this waiver to support it had never been rendered. Had the attachments belonged to a class over which by any legal possibility the city court could have exercised jurisdiction, then the sections of the code cited would have been applicable, for the attachments would have been such as these sections speak of and refer to. But with attachments ordered and issued on the ground of fraud, no matter by whom' the order is made, the city court has no concern. Relatively to that court such an attachment is none at all, and the defendant might as well have gone there and confessed judgment without any process ever having issued to call for his appearance as to have gone in consequence of these attachments, they being utterly void so far as the city court was concerned. Judgment affirmed.