Paddock v. Matthews

[21] By the Court, Copeland, J. The principal assignment of error, and the one mainly relied upon by the plaintiffs in error, is that the Commissioner had no jurisdiction in the-matter; had no power to order the attachment to be dissolved after the defendants had given a bond to the Sheriff, and then procured a release of the attachment — received back the property attached; and after they had appeared in the case and plead issuably to the declaration filed therein. By the provisions of § 5, Chap. 114, of the R. S. 1846, relating to proceedings by attachment, the writ of attachment shall command the Sheriff or other officer to whom it may be directed, to attach so much of the lands, goods, &c., of the defendants, as will be sufficient to satisfy the plaintiff’s demand, and also, to summon the defendant, if to be found within the State, to appear and answer. Section 17 provides that if it appear upon the return of the writ, that a copy thereof lias been personally served upon the defendants, or either of them, or if either of the defendants shall appear in the suit, the same proceedings may be thereupon had in such suit, in all respects, as upon the return to an original writ of summons personally served in a suit commenced by such summons. By the provisions of the 18th Sec. “if it appear by the return of the writ, that any'property has been attached-thereon, and that neither of the defendants could be found, then the plaintiff shall cause a notice to be published,” &c., and may therefore proceed to final judgment. So that it will readily be perceived, that whether property be found or not, the suit may be proceeded in, where it appears that there has been a personal service upon the defendants, and therefore that ah attachment of property is not necessary, to give the Court jmisdiction of the action. By virtue of the provisions of sections 13, 14, and 15 of said act, if the defendants or party in whose possession the [22] property may have been found, executes and delivers to the officer a bond, the property may be released, and re-delivered to the defendants, “ but the suit should not be discontinued, or in any way affected by such delivery.” These several provisions of the Eevised Statutes, 1846, are still in force. But the original act contains no provision similar to that contained in the amendatory act of 1851, “ and under which Sie proceedings in this case were commenced, nor does the amendatory act in any way conflict with the several provis-, ions of the original. It simply provides an additional mode of releasing property taken by attachment. Section 1 of the amendatory act, (act No. 125, session laws 1851,) provides that in all cases where a writ of attachment has been, or shall be issued, and served under the provisions of law, it shall be lawful for any. defendant, whose property may he attached by virtue of such writ, to apply to the Judge of the Circuit Court, or to the Circuit Court Commissioner, where the writ issued, for a dissolution of such attachment, that upon the presentation of such application, the Judge, or Commissioner shall issue a citation to the plaintiff in attachment, requiring him to show cause why the attachment should not ¡be dissolved, and the property restored to the defendant, that upon the return of the citation, or on such other day as the Judge or Commissioner may appoint, there shall be a hearing of the parties, and if upon such hearing, the Judge Commissioner should be satisfied that the plaintiff had not a good and legal cause for suing out such writ, he shall order 4he attachment to be dissolved, and the property to le restored to the defendant, the same end being obtained so far as ithe property attached is concerned as by the giving of a Ibond under the original act. But where a party, defendant; Instead of having the validity of the attachment inquired inte», under the provisions of the amendatory act, elects in the fest instance, to give his bond under the original act, and in Shat way obtain a release and restoration of his property, he [23] cannot subsequently avail himself of the provisions of the amendment. So that in this case, the order of the Commissioner dissolving the attachment, and ordering the property to be restored, must be regarded as void, there being nothing left to which such an order could attach.