Hadley v. Bryars

BRICKELL, 0. J. The appeal is taken by consent of the appellee, under the statute (R. C. § 3486) which authorizes [141] an appeal from a judgment overruling a motion to quash or dismiss an attachment, or sustaining a demurrer to a plea in abatement of an attachment. We pass over the defects of each plea in abatement, which an amendment could cure, as we find from the record, there is another case pending, involving the same pleas, and the same motions to quash, awaiting the decision in this cause. The first plea in abatement, alleges three separate grounds for quashing the attachment : the first of which is, that its issue is not authorized by law. The attachment is sued out for damages for an injury to the person of the plaintiff, committed by the defendants ; and we presume the plea intends to assert, that an attachment may not issue for such a cause of action. If that be so, the objection is not well founded. Any civil action, whether founded on contract, or in tort, may, under the statute, be commenced by attachment. — B>. 0. § 2927. The second ground is, that the attachment could not issue against the defendants jointly. Trespassers may be jointly or severally sued, at the election of the party injured. When jointly sued, as in the present case, and an attachment is the leading process, issuing on an affidavit that discloses a ground of attachment as to all the defendants, it is properly issued against the defendants jointly- — that is, it is proper to embrace all the defendants in one writ. The third ground is, that the defendants have not a joint interest in the property, on which the attachment is levied. We do not suppose a plea in abatement is the proper mode of testing the regularity of the levy of an attachment, or, of ascertaining the ownership of the property on which the levy is made. We pass that over, however. When an attachment issues against several defendants, it may be levied on the property of either defendant, in which he has an interest subject to levy, or on the joint property of all the defendants. The writ is joint and several in its operation — not confined to the joint property of the defendants. Of course, if it is levied on the separate property of one or more defendants only, it operates to bring before the court only the defendants whose property may be levied on, and not other defendants, having no interest in the property. The levy stands in the place of personal service of process, and if there is no levy on the property of one defendant, he is without the jurisdiction of the court, unless he voluntarily appears, as he would be without personal service, if the process were ordinary, issuing against the person, and not the estate. The second plea in abatement is filed by the defendant, James Hadley, alone, and avers the property levied on is exempt from levy and sale. Property, which the Constitution [142] and statutes exempt from levy and sale, is as free from seizure under attachment, as it is Rom process which authorizes a sale. When the property is personal, it must be selected and claimed, to draw it within the protection of the Constitution and statutes; and the selection and claim cannot be made until after the levy. The levy operated to bring the defendant before the court, though he may, by the subsequent claim, withdraw the property from the custody of the law, and retain undisturbed possession of it. We do not find the bond defective. It is properly payable to all the defendants; such is the requisition of the statute. The fact that they are defendants, creates all the privity and community of interest, necessary to support it as a joint obligation to all, though the writ may be levied on the property of one only. It is not insufficient because one of the obligors affixes the word agent to his signature. The motion to quash, presents, in addition to the matters we have considered, the sufficiency of the affidavit. It is supposed to be insufficient, because it does not aver the facts and circumstances attending the tort, so that the officer issuing the writ could fix the amount for which a levy should be made. In Bozeman v. Rose, 40 Ala. 212, it was held, that the special affidavit, of facts and circumstances pertaining to the particular transaction, which is required, when the attachment is sued out to enforce a claim for unliquidated damages, arising from breach of contract, is intended for the single purpose of guiding the discretion of the officer issuing the writ, in fixing the amount for which a levy may be made, and that its sufficiency could not be tested by plea in abatement; that it was for the officer issuing the writ to determine its sufficiency, and his determination was conclusive. This is manifestly true, and is as true, when, as in the present case, the action is for a tort, sounding wholly in damages. The statute guards the defendant against an excessive levy, by clothing the court with a discretion, on his affidavit to reduce the amount, and release the levy to the extent of the reduction. We believe we have considered the several grounds of objection relied on, to abate or quash the attachment. We concur with the Circuit Court in the opinion that they are not well taken, and affirm the judgment it has rendered.