Mack Const. Co. v. Quonset Real Estate Corp.

• Decision Date: 17 January 1956
• Docket Number: No. 9659,9659
• Citation: 122 A.2d 163,84 R.I. 190
• Parties: MACK CONSTRUCTION COMPANY. v. QUONSET REAL ESTATE CORPORATION. Ex. . April 20 as of
• Court: Rhode Island Supreme Court

Page 163

122 A.2d 163

84 R.I. 190

MACK CONSTRUCTION COMPANY. v. QUONSET REAL ESTATE CORPORATION.

Ex. No. 9659.

Supreme Court of Rhode Island.

April 20 as of Jan. 17, 1956.

Corcoran, Foley & Flynn, Francis R. Foley, Pawtucket, for plaintiff.

Michaelson & Stanzler, Milton Stanzler, Providence, for defendant.

CONDON, Justice.

This action of assumpsit was commenced by a writ of attachment dated August 11, 1955 and made returnable to the superior court holden in Providence for the county of Providence on September 7, 1955. After the writ was duly entered it was quashed and dismissed September 16, 1955, on the defendant's motion for the reason that personal service was not made upon the defendant. The plaintiff excepted to such action and has brought the case here by its bill of exceptions solely on that exception.

It appears from the record that the sheriff, pursuant to the mandate of the writ, duly attached defendant's real and personal estate and also its funds in the hands and possession of the Industrial National Bank of Providence, but failed to make personal service on defendant. However, on August 22, 1955, after such attachments had been made and had come to the attention of defendant and before the writ was returned into court, defendant filed a motion for relief from excessive attachment. According to an entry on the file jacket this motion was heard by a justice of the superior court and thereafter an order for partial release of attachment was entered. In accordance with such order all of defendant's property except its funds in the hands and possession of the Industrial National Bank of Providence were released from attachment.

It further appears from the record that defendant did not state in its motion that it was appearing specially nor does it appear elsewhere in the record that any reservation of its rights was made prior to asking for the relief sought by the motion. It is also to be noted that it was the defendant and not the plaintiff who was seeking the court's aid before the return day. The plaintiff contends that in such circumstances the filing of the motion was tantamount to a general appearance and a waiver of personal service of the writ.

The defendant argues that its motion did not involve the merits of the action and that when such motion was filed the action was not before the court. It also argues that a defendant who appears to attack an attachment is, by the weight of authority, deemed to be making a special appearance. In that connection it claims that its motion for partial release was, in effect, an attack upon the attachment.

The plaintiff contends that the authorities are divided. It concedes the weight is as stated by defendant but claims that the rule is usually applied to nonresident defendants and then only when an attack is made upon the validity of the writ. And plaintiff points out that there is a strong minority view which deems any attack, other than one alleging a lack of inherent jurisdiction to try the cause, as an appearance sufficient to confer jurisdiction over the person of the defendant. Both parties cite 55 A.L.R. 1121, Annotation in support of their respective contentions. However, plaintiff claims that defendant's motion for partial release of the attachment is in no sense an attack upon the validity of the writ.

The first question, therefore, for us to decide is whether such motion is in effect an attack upon the validity of the attachment. We are of the opinion that it is not. It is...