Malone v. Handley, Reeves & Co.

STONE, O. J. — 'The present is a suit by Malone to recover. damages of defendants for wrongfully and vexatiously suing out an attachment which was levied on plaintiff’s goods and' effects. Malone was a retail merchant, and had purchased goods from Handley, Eeeves & Co., amounting to near eight hundred dollars, which was unpaid. About three-fourths of. [119] this indebtedness was past due. On Monday, May 4, 1885, Malone became intoxicated, got into a difficulty with several persons, in which a knife was used, and they suing out warrants for his arrest, he left his business and his home. The officers of the law made diligent search for him at his home and through the neighborhood, placed a guard about his premises, but failed t-o arrest or find him. On Thursday, May 7, Handley, Beeves & Co., through their agent, sued out attachment against him, alleging in their affidavit as the ground, “ that the said La Fayette Malone is now secreting himself so that the ordinary process of law can not be served on him.” The attachment was levied on the day it was issued. After the attachment was levied Malone returned to his home on the evening of the 7th, and submitted to arrest under the warrants. The question presented is, do these facts make a case for attachment under the statutes of this State. The affidavit for attachment conforms substantially to statutory requirements. There is a marked difference in the language of the statutes of the different States. Many of them require not only the secretion or concealment, but the secretion must be with the intent to avoid the service of process in the particular case, or class of cases. Under such statutory requirements, to abscond or secrete one’s self to escape criminal arrest, furnishes no ground for attachment in a civil suit; for the intent to evade service under civil process is wanting. — Evans v. Saul, 8 Martin La., N. S. 247; Lynde v. Montgomery, 15 Wend. 461; Fitch v. Waite, 5 Conn. 117; Drake on Att. §§ 48, 51; 1 Waite Ac. & Def. 416-7 ; North v. McDonald; 1 Biss. 57 ; U. S. v. O’Brian, 3 Dill. 381. The provision of the statute under which the attachment in this case was issued, contains no word or phrase which indicates that the act of secretion or concealment shall be influenced by the motive or intent to avoid service of process. “ Secretes himself so that the ordinary process of law can not be served on him,” is the language of our statute. That is, the secretion must be such, or so complete, as that process can not be served on him. Not being able to serve him personally, the law has furnished the creditor with another means of perfecting service ; namely, by attachment of his goods. And this rule applies equally to the second and third grounds for attachment; for if the debtor absconds, he places it as effectually out of the power of his creditor to serve him with process, as if he secreted himself, or resided without the State. And fraudulent or other intent is not made one of the conditions on which this statutory remedy can be resorted to. The defense comes [120] fully up to the letter of the statute, and we do not feel at liberty to travel beyond that, in search of a supposed spirit. And if we did, we are not aware it would help appellant. Inability to effect service of ordinary process in the ordinary way, was the evil or inconvenience the statute was designed to remedy. It is the fact of absconding or secreting one’s self — not the purpose of it — which interposes the obstacle. To hold otherwise, would be to declare that no matter how long the absence or secretion might continue, the creditor would be without remedy, unless the debtor had absconded or secreted himself with the intent to avoid the service .of civil process. The legislature having omitted all mention of intent, we find no authority, either in the language of the statute, or in the nature of the question, to supply so important an omission. The charges of the City Court are in accordance with our views, and the judgment must be affirmed.