Hisor v. Vandiver

• Citation: Hisor v. Vandiver, 82 A. 526, 82 N.J.L. 303 (N.J. 1912)
• Decision Date: 12 March 1912
• Court: New Jersey Supreme Court
• Parties: WILLIAM E. HISOR v. ROBERT M. VANDIVER, PROSECUTOR

82 A. 526

82 N.J.L. 303

HISOR

v. VANDIVER.

Supreme Court of New Jersey.

March 11, 1912.

(Syllabus by the Court.)

Action by William E. Hisor against Robert M. Vandlver. Heard on rule to show cause why a writ of certiorari should not issue to review an order of the circuit court denying an application to quash a writ of attachment. Rule made absolute.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Hugh B. Reed, for prosecutor.

David W. McCrea, for defendant.

BERGEN, J. The plaintiff obtained an order from a Supreme Court commissioner that a writ of attachment issue out of the Hudson county circuit court against the defendant, based upon damages caused to his automobile by the alleged negligence of the defendant. The writ being issued and the property of the defendant attached, he caused a bond with surety to be filed, which being approved by the court, an order was made releasing the attached property from the lien of the writ. Whereupon the defendant moved the circuit court to quash the writ and discharge the bond given for the release of the property. The circuit court having denied the application, a rule to show cause why a writ of certiorari should not issue to review the order of the circuit court was allowed, which we are now moved to make absolute. The proceedings were instituted under section 84 of the practice act, which authorizes the commencement of an action by attachment, in all cases where a summons might issue, upon proof of the existence of conditions prescribed by the act.

The first objection to the allowance of the writ is that proceedings of the circuit court in common-law actions are not reviewable by the writ of certiorari. The answer to this is that the proceedings are not according to the course of the common law; for the proceedings under our attachment act are statutory, and therefore subject to review by certiorari. Curtis v. Steever, 36 N. J. Law, 305. An order of the circuit court, refusing to set aside a writ of attachment under the statute of 1893, was reviewed by certiorari in Watson v. Noblett, 65 N. J. Law, 506, 47 Atl. 438, and the propriety of the proceeding was not questioned; and an order, refusing to quash such a writ, was reviewed by certiorari in Pranklyn v. Taylor Hydraulic, etc., Co., 68 N. J. Law, 113, 52 Atl. 714. Section 86 of the practice act, relating to the present procedure, declares that, upon filing the order of the commissioner and the bond required, the clerk shall issue the writ, "and the practice and procedure in relation to the said writ, its effect, levy and return, and in relation to the custody and sale of personal property attached, shall be the same as in cases of attachment against nonresident debtors, and in relation to the vacation thereof, when improperly issued, the same as setting aside an order for bail;" and in the latter case, as provided by section 61 of the practice act, the judge of the court out of which the writ issues shall consider and determine the sufficiency, in fact as well as...