Dunlap v. Dillard & McCorkle

Lacy, J., delivered the opinion of the court. The first question to be passed on is the . exception to the ruling of the court in refusing to allow the defendant to contest the right to sue out the attachment, upon the trial of the case, upon the ground that the question had been adjudicated by the court in the vacation order refusing to quash the attachment. The question is, what is the construction and force to be given to the amendment to the sixth section enacted by the general — 853 — assembly in 1866, to be found in the Acts of 1865-6, page one hundred and seventy, which is as follows: “ The judge of the circuit court to which any attachment may be made returnable, or any other circuit court judge, may,-in vacation, upon ten days’ notice to the attaching creditor, hear testimony upon the question, and if of opinion that the attachment was sued out without sufficient cause, may quash or dismiss the attachment.” This is added as an amendment to the sixth section, which otherwise provides to whom the attachment shall be directed and where returnable; the following section, provides how the attachment shall be executed, the eighth and ninth sections following provide for the details as to executing and seizing the property. The twenty-first and twenty-second sections provide, what defense, and by whom defense may be made. The twenty-second section .providing for the trial of the case, declares, “ The right to sue out any such attachment may be contested; and when the court is of opinion that it was issued on false suggestions, or without sufficient cause, judgment shall be entered that the attachment be abated; when the attachment is properly sued out, and the case heard, upon its merits, if the court be of opinion that the claim is not established final judgment shall be given for the defendant. In either case, he shall recover his costs, and there shall be an order for the restoration to him of the attached effects.” The twenty-third section and others following, provide for such cases as judgment is for the plaintiff at the trial. Before the act of 1866, when an attachment had been sued out before a justice of the peace, however unreasonable or unfounded the claim of the attaching creditor, that the debtor was removing his property, or intending to remove his property out of the state, the attached effects were obliged to remain tied up in the hands of the sheriff until the trial in court, which, in many instances, might be long delayed, unless the debtor gave a replevy bond with security. — 854 — That this might and did often work hardship and injustice, experience soon showed plainly enough; the legislature, without amending the sections concerning final trial and judgment, amended the section providing for the direction and return of the attachment so that, though returned to the court in term or some rule day thereof! there should he a speedy method by which obvious and patent injustice might be remedied, and the right was given, upon ten days’ notice, to apply to the judge of that court to which the attachment was to be returned, or some other circuit judge in vacation, who was granted the power therein given. And what was that ? to hear evidence, and if of opinion that the attachment was sued out without sufficient cause, to quash or dismiss the attachment, and if not of such opinion, do what? The sole power is granted to dismiss the extraordinary remedy sought, and leave the plaintiff to the ordinary remedy provided by law for the collection of his debt. But however great the apparent urgency of the plaintiff’s case, whatever gravity might surround the situation, the said judge in vacation could do nothing for the plaintiff except refuse to interfere. If he shall be of opinion that the attachment was sued out without sufficient cause, he may quash it; if he is not of that opinion, he leaves the whole subject to the action of the court at its next session, to be then tried under the twenty-second section, which provides that the right to sue out any such attachment may he contested, and when the court is of opinion that it was issued on false suggestions or without sufficient cause, judgment shall be entered that the attachment he abated. When the attachment is properly sued out and the case heard upon its merits, if the court be of opinion that the claim of the plaintiff is not established, final judgment shall, be given for the defendant. In either case, he shall recover his costs, and there shall be an order for the restoration to him of the attached effects. In the sixth section there is no direction as to the restoration of the attached effects, and it may be observed that this pro — 855 — vision of the sixth section is placed in the law in advance of any provision for the execution of the attachment, or its levy upon or seizure of any property in the contemplation of the law as soon as the attachment was sued out, the defendant should have a summary way open to him for relief, equally speedy and summary, as the remedy itself is as to the plaintiff. The defendant may then ask, before he has been put to further annoyance, that the attachment, if purely vexatious, that is, is sued out without sufficient cause, may he quashed or dismissed. If he has a plain and clear defence the matter ends at once, hut if his motion is overruled, he goes to court, how? To have his case tried under the attachment law, under the twenty-second section, and that authorizes him to contest the suing out of the attachment. The summary remedy in vacation could not have been intended to supersede the trial, in any respect, which was to he had in court, except in so far as it expressly gives the power to the judge to dismiss the attachment. That it was not intended to supersede the trial, is. evident when we observe that it does not give the judge in vacation any authority to grant relief to the plaintiff. The parties in such a case would he entitled to a jury to try the questions involved therein; a motion before a judge, in vacation, any judge of any circuit court, might, under-some circumstances, preclude a jury; we think the law could not have intended to supersede the trial of the case by this vacation motion and order, further than in the limited sense hereinbefore stated. The provision in the sixth section is not in conflict with any other provision of the law, and does not repeal any other provision, and the provisions of the law providing for the trial of the case remain in full force when the trial comes on. In the case of Talbot v. Pierce, decided by the court of appeals of Kentucky, in the year 1853, and reported in 14th Ben. Monroe’s Reports, the court had this case before it in the same form in which it comes up in this court in this case, when Judge Marshall, delivering the unanimous opinion of that court, said: “It is sufficient to say that in whatever stage of the proceeding — 856 — it becomes important to determine whether the facts upon which the attachment rests are true or false, the denial of the defendant in his answer will throw the burden of proof on the party sustaining the attachment.” “We add,” says Judge Marshall, “that in our opinion the circuit court, notwithstanding its refusal to discharge an attachment on motion, may, without additional evidence, discharge it on final hearing; and this court has a right to revise and reverse, or affirm the final judgment, discharging or enforcing the attachment.” And we are of opinion the circuit court erred in overruling the motion of the defendant at the trial, to be allowed to contest the attachment on the ground that it had been sued out upon false suggestions and without sufficient cause, in whatever proper form it was made, whether by plea or otherwise, it was a plain statutory right of which the court had no power to deprive the defendant. We are further of opinion that the court erred in requiring the iron ore levied on in the suit, to be removed to Amherst Courthouse, in its delivery to- the sheriff. The time and place to be fixed by the court in its judgment should be reasonable, and it is error for the court to prescribe an impossible delivery as to place and time, in order to compel a forfeiture of the forthcoming bond.- For the foregoing reasons, we are of opinion that the judgment of the circuit court complained of is erroneous, and must be reversed and annulled, and the cause remanded to the said circuit court for a trial to be had therein in accordance with the foregoing opinion. Which is ordered to be certified to the said circuit court of Amherst county. The judgment is as follows: This day came again the parties by their counsel, and the — 857 — court having maturely considered the transcript of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in refusing to allow the defendant to file his plea at the trial and contest the suing out of the attachment, upon the ground that it was issued upon false suggestions and without sufficient cause, notwithstanding the vacation order of the judge therein, and in rendering judgment against the defendant, the plaintiff in error. It is, therefore, considered by the court that the said judgment he reversed and annulled, with costs in favor of the appellant, and the defendant he granted a new trial. Judgments reversed.