Desha v. Baker

Dickinson, J., delivered the opinion of the Court: The only question raised by the pleadings, and upon which the parties rest their case, is, whether there was such an execution and service of the writ of attachment, upon the garnishees, Collier and Smith, as to divest Francis of his right to exercise ownership over the property. As the proceeding by attachment- is an innovation upon the common law, the party claiming to avail himself of its privileges, will not be permitted to travel out of the Statute, by which it is regulated. It is a settled principle that the property of absent debtors is liable by legislation to the payment of debts. Much of the credit, which an individual obtains, is often derived from the money due to him, as they are considered liable to the payment of his debts. Thus the credit operations of the country are made safer, and commercial transactions beneficially extended. To enable us to come to a correct couclusion, we have given the whole subject a careful investigation. Although the interest of several different parties is involved in this case, yet we are not authorized to look any farther than as the facts are presented on demurrer. There is no discrepancy in the several provisions of the Statute, nor any uncertainty as to the proper course to be pursued. • If the Sheriff, to whom the writ of attachment is directed, finds sufficient property to secure the debt as sworn to, with interest and cost of suit, he should proceed no farther. But if, in his opinion, there is still a deficiency, he is authorized and required, to summon every person, who may be in possession of any other property, or who may be indebted to the defendant, to make up such deficiency. If lands or tenements, or other tangible and movable property be attached, not being found in the possession of any person, the writ can in such case be executed as to the former, only by the officer’s going to the place, where such lands or tenements are situated: and there, in the presence of one or more citizens of the county, declaring that he attaches the same: and as to the latter, by his going to the place where the property may be found, and there making the like declaration in the same manner, and also taking such property in possession. , If a person, whether named in the writ or not, is supposed to have in his possession property of the defendant, or is supposed to be indebted to him, the Sheriff must go to such person, and make the same declaration, stating what is attached, whether property, and of what kind, or debts; and also serve upon such person, (whether particularly named in the writ of attachment or not) a summons, by reading the same in his presence and hearing, or delivering him a copy thereof. If such person is absent and the summons cannot be served personally upon him, a copy is to be left at his usual place of residence, with some white member of the family over the age of fifteen years, and informing him of the contents of the same. Still the same declaration in the presence of one or more citizens of the county as to what is attached, is necessary. And he must return with the writ a schedule of the property attached, and the names of the persons, in whose presence the writ is executed. (Secs. 6, 8, 11, 19, ch. 13, Rev. St.) The schedule removes any doubt as to the extent of the attachment, and by giving the names of the persons in whose presence the act is done, witnesses may, if necessary, be found to substantiate the truth or falsity of the return. If these requisites of the Statute are complied with, the attachment of a debt in such case in the hands of a garnishee, would fix it there in favor of the attaching creditor, and the debtor could not afterwards pay it over, except in conformity to the judgment of the Court. The attaching creditor would, in siy;h case, acquire a lien upon the debt, binding upon all parties interested; and which the Courts would not only recognize, but the garnishee would be protected pro tanto under a recovery had in virtue of the attachment, and could plead such recovery in bar of any future action. It is essential to the protection of the rights of the garnishees, as well as of the defendant, that the plaintiff in attachment should not be permitted to depart from the rules laid down in the Statute. Does the replication show that the plaintiffs below conformed to the Statute ? There is no allegation that there was a schedule of the property attached; no averment, that at the time of the service of the summons on Collier and Smith, the Sheriff declared in the presence of one or more citizens of the county, that he attached the debt due by them to Francis. All of which we deem it essential for the Sheriff to have done, before the attaching creditors could acquire any lien upon the debt, or divest Francis of his right to control the writing obligatory. Having omitted to do this, we are clearly of opinion that the replication was defective in not showing a sufficient service of the writ upon the garnishees; and that, therefore, the demurrer ought to have been sustained. Judgment reversed, and case remanded to said Court to enter judgment in favor of the plaintiff in error upon his demurrer to the first replication of the defendants in error to his interpleader, and grant the parties leave to amend their pleadings, if asked for. And for further proceedings.