Bates v. Brothers
| Decision Date | 09 August 1882 |
| Citation | 17 S.C. 553 |
| Court | South Carolina Supreme Court |
| Parties | BATES, REED & COOLEY v. KILLIAN & BROTHERS. |
OPINION TEXT STARTS HERE
1. Attachments may be dissolved upon two grounds: 1st, Where some irregularity of a fatal character appears on the face of the proceedings; 2d, Because that the allegations upon which it was issued are untrue.
2. Defendant having given a bond under Section 265 of the Code, did not thereby waive his right to have the attachments discharged, under section 264, as irregularly and improvidently granted.
Before ALDRICH, J., Greenville, January, 1882.
This was a motion made by defendants at Pickens to have certain attachments upon their property, under proceedings in Greenville, vacated. The motion was supported by affidavits and was based upon the following grounds: 1st. Because the affidavit on which said attachment was issued was insufficient. 2d. Because the allegations of fraud, or that the defendants had disposed of, secreted or concealed, or were disposing of, secreting and concealing, their property with intent to defraud their creditors, contained in said affidavit, are not true. 3d. Because many other statements made in said affidavit are not true. 4th. Because said affidavit and attachment are in many other respects irregular and void.
This motion was granted, the Circuit judge holding that there was no fraud as charged in the affidavits upon which the attachments issued. From this order the plaintiffs appealed upon the following grounds:
1. Because the defendants had their option either to give the undertaking or to move to discharge the attachment, as in case of other provisional remedies, and having elected to adopt the first course, it is respectfully submitted that they waived their right to the second, and his Honor should have so held.
2. Because the attachment having been discharged upon undertaking could not be again discharged upon motion.
Messrs. Wells & Orr, for appellants.
Mr. M. F. Ansel, contra.
The opinion of the Court was delivered by
The plaintiffs, appellants, in an action for the recovery of $1942.53, alleged by plaintiffs to be due them from the defendants, attached certain property of the defendants, consisting of a stock of goods. The defendants applied under § 264 of the code for the surrender of the goods, which upon the execution of the bond required by § 265 of the code was ordered, and the property thereby discharged from the lien of the attachment. Two other attachments were afterwards issued, one of which was by the plaintiff.
Subsequently, the defendants moved to discharge all three of the attachments, upon affidavits served. The appellants resisted the discharge of the first, upon the ground that the defendants having adopted the proceeding provided in the code for the surrender of the property, and having thereby obtained possession, they had waived their right to assail the attachment on any ground, and therefore that their motion as to this attachment should be refused. The Circuit judge overruled this position and discharged all three of the attachments, including the first. The appeal questions the correctness of this ruling as to the first.
Attachments may be dissolved or defeated upon two grounds: 1st. Where some irregularity of a fatal character appears on the face of the proceedings; and 2d. Because of the fact that the allegations upon which it may issue are untrue. The dissolution in either case may be had upon motion-the first being made upon the papers, and the second upon affidavits as to matters dehors the record. These causes go to the root of the attachment, especially in the last class of cases, and when they exist the effect of their interposition is not simply to release the property but to entirely vacate and set aside the attachment proceedings.
Besides this remedy, in cases where the attachment has been irregularly issued, or issued without warrant of law, section 265 of the code supra provides for the release of the property attached, where the attachment has been legally issued and there is no objection as to its regularity or want of observance of proper form, the effect of which provision, when adopted by the defendant, is to convert the action from one in rem to one in personam, with security by the defendant for the payment of the debt. This is done by permitting the defendant to give bond for the payment of the debt in the event that the plaintiff's action succeeds, the purpose of an attachment being to obtain security for the debt by securing a lien on property. The bond provided for is substituted in the place of this lien, and the property is released.
This proceeding is proper where there is no ground to attack the attachment for either of the causes mentioned first above. Where either of the causes exists, parties would ordinarily be presumed to know it, and no doubt would promptly avail themselves of the opportunity offered to assail the attachment, and in such case there would be no necessity to give the undertaking provided for in the Code. The property attached could be released without this additional liability. There can be no doubt but that the relief provided for in section 265 of the Code was intended primarily to meet the cases where the attachments were regular and valid, and yet where it would be a hardship to the debtor to be deprived of the use of his property during the pendency of the action. This remedy respects the rights and interests of both creditor and debtor, and while it releases the property to the use of the debtor, it gives the creditor a security in the undertaking which it requires equally as reliable as the lien which it displaces.
Now the question arises whether when the debtor avails himself of the latter remedy in the first instance, he can afterwards retrace his steps, and invoke the first; whether after having...
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Plumley v. Stewart
...Fisher, 152 S.C. 108, 149 S.E. 340, 65 A. L. R. 1427, cited by the respondents, are in harmony with the proposition we have announced. In the Bates case, it was held that a defendant had given bond in an attachment action did not by that act alone waive his right to have the attachment disc......
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Bizzell v. Mitchell
...as reliable as the lien displaced by it, and an adequate protecton, while the debtor is restored to the possession of his property. Bates v. Killian, supra. It appears that an undertaking was given to the sheriff for the release of the property, but what effect it will ultimately have in se......
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Harrison v. Morris
...property has been seized may apply to the officer who issued the attachment for relief under this section. 11 See Bates, Reed and Cooley v. Killian & Bros., 17 S.C. 553 (1882). 12 See Sec. 10-901 et seq., Code of Laws of South Carolina, 1962, as 13 See Sec. 10-932.1, S.C.Code, 1962, as amen......
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Skalowski v. Joe Fisher Inc
...posi-tion correctly taken by him in the first instance. It appears to me that the question is absolutely concluded by the case of Bates v. Killian, 17 S. C. 553. In that case the attachment had been levied and the defendant had given a dissolution bond under sections 516, 517, Code Civ. Pro......