McDonald v. Clark

Mitchell, J. Laws 1885, ch. 110, provides that “whenever any attachment has been or shall be levied, and more than three years have or shall have elapsed without judgment being entered' in the action, any person having any interest in the attached property, although not a party to the original action, may move for the release of any such property from the lien of such attachment; and if it shall appear, to the satisfaction of the court, that no proceedings have been had in said action for a period of three years, or, from other evidence, that said action has been abandoned, said attachment shall be vacated, and the lien thereof released.” We think it very clear that a motion under this statute cannot be made after the entry of judgment. All its provisions evidently presuppose that the action has not been prosecuted to final judgment. It is not to be presumed that the legislature contemplated the vacation of the attachment after its lien had become merged in that of the judgment. The whole statute was aimed at cases where the action has been actually abandoned, or where the plaintiff has unreasonably delayed in prosecuting it to final judgment, leaving the attachment an apparent, or a mere provisional or inchoate, lien on the property. In this case final judgment had beén entered before appellant made [232] his motion to vacate, and consequently the motion was properly denied, notwithstanding more than three years had elapsed between the levy of the attachment and the entry of the judgment. Order affirmed. Vanderburgh, J., absent. (Opinion published 54 N. W. Rep. 1118.)