Schulenberg v. Farwell

Mr. Justice Scott delivered the opinion of the Court: Although commenced on the same day, the attachment was none the less in aid of the suit in assumpsit. Having commenced his suit by summons, plaintiff'had the undoubted right, at any time before final judgment, to sue out a writ of attachment in aid of his original suit, and it makes no difference whether his suit had been commenced one day or one month, or any indefinite period. It is enough if it appear the principal action was commenced first. Under our statute, it seems the original suit may proceed to final decision, notwithstanding the causes for attachment may be contested. Ho reason is perceived why a defendant may not defend against the attachment alone, and suffer judgment to go by default against him in the original suit. It is his privilege, at his election, to defend one or both or neither action. Proceedings in attachment in aid of an original suit, are to be conducted, “ as near as may be,” like those in an original attachment. We are aware of no reason why attachment proceedings in aid of an original suit, although entitled in the same case, need interfere with the prosecution of the principal cause. A plea denying the existence of the causes which it is alleged justify the attachment, constitutes no defense to the cause of action set forth in the declaration in the original suit. Ho replication having been filed to the plea in abatement denying the causes for attachment, it might be understood to work a discontinuance or at least an abandonment of that branch of the case. In that view, the attachment proceedings were at an end, and hence the anomalous case suggested, that one branch of the suit has been finally adjudicated while another part remains to be tried, does not exist. It is not alleged defendant has any defense to the action of assumpsit commenced against him, and there having been a discontinuance or abandonment of the attachment in aid, defendant is in nowise prejudiced by the rulings of the court. His defense to the attachment has prevailed, and that was all he sought to make. The judgment will be affirmed. Judgment affirmed.