Exchange Nat. Bank v. Clement

• Decision Date: 30 January 1896
• Citation: 109 Ala. 270,19 So. 814
• Parties: EXCHANGE NAT. BANK OF SPOKANE v. CLEMENT. [1]
• Court: Alabama Supreme Court

19 So. 814

109 Ala. 270

EXCHANGE NAT. BANK OF SPOKANE v. CLEMENT. ^[1]

Supreme Court of Alabama

January 30, 1896

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action by the Exchange National Bank of Spokane, Wash., against Emma Clement, by attachment. Order dissolving the attachment, and plaintiff appeals. Reversed.

W. A Gunter and G. H. Patrick, for appellant.

A. A Wiley, for appellee.

BRICKELL C.J.

The appellant, a corporation having its domicile in the state of Washington, on the 23d day of March, 1894, sued out a writ of attachment against Emma Clement, a resident citizen of the same state, returnable into the city court of Montgomery which was on the day of its issue by the sheriff levied on certain real estate situate in the city of Montgomery, as the property of the defendant, and, with the levy thereon indorsed, was duly returned into the city court. At the return term, an attorney, appearing specially for the defendant, moved the court to discharge the levy of the attachment, upon the sole ground that the real estate levied on was not the property of the defendant, but was the property of one Catharine Dreher. In support of the motion the defendant introduced in evidence a deed by which she and her husband, on the 26th day of February, 1894, on a recited consideration of $2,500, conveyed the real estate to said Catharine. The execution of the deed and its registration, that it recited a consideration of $2,500, and that the grantee had been from the day of execution in continuous possession of the real estate, were facts admitted. It was, for the purposes of the motion, further admitted that the grantee had been a resident citizen of the city of Montgomery for 25 years, and at the execution of the deed was without knowledge of the indebtedness of the defendant on which the attachment is founded. The indebtedness was evidenced by the records of duly-certified personal judgments against the defendant in the superior court of Spokane county, state of Washington,-the one for $2,540.31, and the other for $94.47,-rendered prior to the conveyance. The city court granted the motion, and rendered judgment discharging the levy, and dissolving the attachment, to which the appellant excepted. The appellant moved for judgment by default, and also for judgment by nil dicit, against the defendant; but the motions were overruled, and exceptions reserved. The rendition of judgment discharging the levy and dissolving the attachment, and overruling the motions for judgment, form the matter of the assignments of error.

The argument in support of the rulings of the court below, discharging the levy and dissolving the attachment, is that the statutes authorize the rendition of a personal judgment against a defendant in attachment, and not a mere judgment of condemnation of the property on which the levy is made; that on the judgment execution may issue, which may be levied and satisfied from any property of the defendant, the subject of levy and sale under legal process. Code, § 3003. As this is the nature and operation of the judgment, the argument proceeds that if the defendant cannot, in opposition to the attachment, contest his ownership of the property, he may be subjected to a personal judgment, though he has not in the property a leviable interest. Reserving for future consideration the nature and effect of the judgment which may be rendered in the case before us (an attachment to enforce payment of a debt, by a nonresident against a nonresident of the state), we will consider the argument as it is presented; for, if it be sound, it must prevail in all suits by attachment under the general statutes authorizing the remedy.

As the leading process in the commencement of an action at law, an attachment executed by a levy upon the property, real or personal, of the defendant, or by the summons of a garnishee, a supposed debtor of the defendant, or custodian of his property or effects (the levy or summons standing in the place of personal service of process), was unknown to the common law. It is strictly, purely, of statutory creation. Deriving existence from statute, its scope and effect must be measured by the law of its creation. The purpose and essence of the remedy, as created and regulated by the general statutes, is to establish, by judgment, a claim or debt against the defendant, and to subject to the satisfaction of the judgment, property or effects within the territorial jurisdiction of the court. Phillips v. Ash, 63 Ala. 419. If there be irregularity apparent on the face of the writ, or defect in the affidavit or the bond which must attend its issue, the statutes contemplate that advantage of the irregularity or defect shall be taken by a plea in abatement, though the court may, in its discretion, entertain a motion to quash, as the substitute of the plea. Code, § 2997; 1 Brick. Dig. 157, §§ 30-63; 3 Brick. Dig. 55, §§ 37-39. But if there be no such irregularity or defect, or if advantage of it be not claimed within the time appointed for pleading in abatement, it is apparent, the statutes contemplate that, after the levy or the summons of the garnishee, the suit shall proceed as if it had been commenced and the defendant brought into court by the personal service of process, except in certain contingencies or events, reference to which will be presently made. Unless the debt or demand sought to be enforced be payable in the future, the plaintiff must, within the first three days of the return term, file his complaint. If the debt or demand be payable in the future, the complaint must be filed when it becomes due and payable. The express declaration of the statute is that, if the defendant appears and pleads, the cause proceeds as in suits commenced by summons and complaint. If he fails to appear, or, appearing, fails to plead within the time required by law, the plaintiff is entitled to judgment by default or nil dicit. Code, §§ 2995, 2996. The pleas to which the statute refers are pleas in bar of the action, not pleas in abatement, for these latter pleas are specially provided for in the succeeding section of the Code. A traverse of the causes for which the attachment may be issued the statute prohibits, manifesting the legislative intent to free the suit from all merely collateral issues. Code, § 2999. And if such issues arise between the attaching creditor and a stranger claiming personal property on which a levy is made, or by reason of the contest of the answer of the garnishee, or of claims of right or interest in the debt, demand, or effects sought to be reached by the garnishment, and there be not other property attached or effects garnished, judgment against the defendant in attachment cannot be rendered until these issues are determined. Code, § 3000. Reading these statutory provisions in connection, they define and declare the scope of the issues which may be raised in the attachment suit, when and by whom they may be raised, and the character of the judgment which may be rendered.

If the levy of an attachment be not fictitious, merely colorable, a fraud on the jurisdiction of the court, that the defendant may not as ground for abating or dissolving the attachment, or discharging or vacating the levy, traverse the ownership of the property on which the levy is made, or deny that he has therein a leviable interest, has been the settled doctrine of this court since the case of King v. Bucks, 11 Ala. 217, which was approved and followed in Sims v. Jacobson, 51 Ala. 186. Such traverse is not within the scope of the issues for which the statutes provide. It is founded on matter dehors or extrinsic to the attachment; presents an issue essentially merely collateral, in disputation of the return made by the officer, and which, if sustained, would be triable by the court alone. So far as we can ascertain, there is no jurisdiction in which such a traverse is entertained. Drake, Attachm. § 418; Wap. Attachm. (2d Ed.) § 574; Campbell v. Morris, 3 Har. & McH. 535-576; Langdon v. Conklin, 10 Ohio St. 439; Mitchell v. Skinner, 17 Kan. 563. In Campbell v. Morris, supra, the attachment was levied on an equity of redemption in lands, which was not, under the laws of Maryland, the subject of levy under legal process. The primary court, on motion of the defendant, discharged the levy. The court of appeals reversed the judgment, and rendered a judgment of condemnation. In Langdon v. Conklin, supra, the court disposed summarily of the motion to discharge the attachment, saying merely: "It is not competent for a defendant in attachment to move the court to discharge the attachment, on the ground that the property attached does not belong to him." In Mitchell v. Skinner, supra, the attachment, as in this case, was levied on real estate, and the motion was to vacate the levy, on the ground of a want of title in the defendant. The court said: "We do not think it is competent for a defendant to move the court to discharge an attachment, or set aside a levy under execution, on the ground that the property attached or levied upon does not belong to him."

When it is said that a fictitious, colorable levy is a fraud on the jurisdiction of the court, against which the court has inherent power to protect itself, while the proceedings are in fieri, it is intended that the levy must be feigned unreal. There must be deceit, a want of good faith, imputable to the plaintiff in the process or to the officer making the levy, from which the plaintiff claims benefit, or in which he participates. There must be knowledge that the property is not the property of the defendant, and, with that knowledge, the levy must be made with the intent to confer jurisdiction...