Magee v. Fogerty

Wade, O. J. This is an appeal from an order discharging an attachment. It appears from the record that the complaint was filed, and summons and writ of attachment issued, on the 21st day of August, 1884; that the defendant answered on the 18th day of September, 18S4; that a substituted motion to discharge the attachment was filed on the 21st day of April, 1886; and that said motion was granted, and the attachment discharged, on the 26th day of said month. A motion to discharge an attachment must be filed before the time for answer expires. Code Civil Proc. § 198. The reason for this requirement is that, if the defendant answers, he thereby confesses that the attachment was regularly issued, and declares that he is willing to abide the event of the trial upon the merits of the action. The defendant made no motion, either before the answer day had expired, or at any other time, to discharge the attachment ; but, after the expiration of more than one year [239] and a half from the date of filing the answer, he filed what he denominates a “ substituted motion,” to discharge the attachment, and upon a hearing thereon the attachment was discharged. A substituted pleading or paper in a case takes the place of an original that is lost or destroyed; but it appears that this defendant filed his substituted motion first, and, in fact, that he never filed an original at all. This is not an amended motion,' — • there never was any motion to amend,— but it is a motion substituted for something that never had an existence, and is therefore an original motion, filed one year and a half after the expiration of the time when it could properly be filed under the provisions of the code. In order to give this motion any validity, or to bold it in court for a moment as a substituted motion, we must presume, with nothing whatever upon which to base such a presumption, that there was an original motion made and filed to discharge the attachment; that the same wras filed before the time for answer had expired; that the original cannot be produced; and that the substitute is a copy, or in substance like the original. The procuring of an attachment, and the steps necessary therefor, is a proceeding within the spirit and meaning of the one hundred and fourteenth section of the Code of Civil Procedure; and if such proceeding is defective, the same may be amended, in furtherance of justice, like any other proceeding under that section. Langstaff v. Miles, 5 Mont. 554. Filing a substituted motion for an original, one year and a half out of time, does not defeat any rights of the plaintiff in this regard; and, after answer filed, defects in such proceedings are waived. The statutory period is a limitation, and a motion to discharge an attachment filed after such period cannot be legally entertained. The order discharging the attachment is hereby reversed and set aside. Order reversed.