Moore v. Holt

• Decision Date: 05 September 1853
• Court: Virginia Supreme Court
• Parties: MOORE & als. v. HOLT.

51 Va. 284

MOORE & als. v. HOLT.

Supreme Court of Appeals of Virginia.

September 5, 1853

1. Process in a foreign attachment is served upon a garnishee having property of the absent debtor in his hands; and afterwards other creditors sue out attachments at law against the same party as an absconding debtor, which are served upon the same garnishee; and before the foreign attachment is ready for a hearing, they obtain judgments and an order for the sale of the property in the hands of the garnishee. The plaintiff in the foreign attachment may amend his bill and enjoin the sale.

2. It is not necessary that the plaintiff in a foreign attachment shall file with the clerk an affidavit of the nonresidence of his debtor before the process is issued, in order to constitute it, with the endorsement in the nature of an attachment, a lien when served.

3. The endorsement in the nature of an attachment does not authorize the officer serving it, to take the effects out of the hands of the garnishee, or to require him to give security to have them forthcoming; nor does it operate as an injunction so as to subject a party to the penalty of a contempt for disobedience. If the plaintiff desires such an order of the court, as will effect these purposes, he must file the affidavit according to the terms of the act.

4. It is not necessary to state in the endorsement on the subpœ na the character or amount of the claims for which the attachment is issued. This is to be done in the bill.

5. What circumstances are sufficient to show that the debtor had gone beyond the limits of the state without an intention to return when the process issued in a foreign attachment was served.

6. The decree states that the order of publication against the absent defendant had been duly published. It is to be taken in an appellate court that everything required by the statute was done.

7. A guarantor of a debt may maintain a foreign attachment against his principal, before he has paid the debt.

8. A letter written by a party to merchants with whom he had been in the habit of dealing, introducing to them his brother who was a stranger to them, stating that this brother was going to their city to purchase goods, and requesting them to introduce him to some of the houses at which the writer dealt, " with assurance that any contract of his will and shall be promptly paid," is a guaranty.

This was a proceeding by foreign attachment, in the Circuit court of Botetourt county, by Samuel P. Holt against Joseph W. Holt an absent debtor, and James Snodgrass and others, home defendants. The case is stated by Judge Lee in his opinion.

Mays and Lackland, for the appellants.

F T. Anderson, for the appellee.

LEE J.

This is a contest between persons claiming to be creditors of a common debtor, and seeking priority out of the proceeds of his effects, which have proved inadequate to the satisfaction of all.

The suit of the appellee was what is called " a foreign attachment," commenced by a subpœ na sued out on the 12th of October 1846, with the usual endorsemant to attach the effects of the absent debtor in the hands of the home defendants, and to restrain the latter from disposing of them till the further order of the court. It was made returnable to the November rules following; and upon the day on which it issued, it was executed upon the defendant Snodgrass, who had in his possession a stock of goods and other effects belonging to the debtor Joseph W. Holt. After the service of this process, that is to say, on and after the 17th day of October 1846, the appellants and other creditors of the said Joseph Holt sued out their several attachments at law, and the same were levied upon the same property.

At the November term of the county court of Botetourt, these creditors obtained judgments upon their respective attachments, with orders for the sale of the attached effects; and thereupon the appellee, who had filed his bill at the November rules, filed a supplemental bill, setting out the proceedings of these creditors, alleging that they were about to proceed to execute the orders of sale of the goods and praying for an injunction to restrain them from so doing and that the goods might be applied to his benefit according to the prayer of the original bill. The appellants and others of the attaching creditors filed their answers, contesting the appellee's right to recover according to the pretensions of his bill, and claiming priority for themselves out of the attached effects. Subsequently the goods were sold by an agent agreed upon by the parties, and the proceeds brought into court; and there having been a reference and a report under an interlocutory order made in the cause, on the 9th of September 1848, the cause was heard, and a decree pronounced sustaining the right of the appellee to recover according to his pretensions, and also awarding to him priority out of the proceeds of the attached effects; and the injunction which had been granted to restrain the creditors who had taken attachments at law, was accordingly perpetuated, and the receiver who held the fund was directed to pay over the same to the complainant, and the attaching creditors to pay the costs of the supplemental bill. From this decree the defendants Moore, Brugh and Smith, applied for and obtained an appeal to this court.

The first question presented in this case is as to the regularity of the proceeding by injunction at the suit of the creditor in a foreign attachment to restrain creditors who have attached the same effects by proceedings at law, from appropriating them to their use. This question is however sufficiently answered by the case of Erskine v. Staley, 12 Leigh 406, in which it is distinctly held that an application to the court of chancery to enjoin a sale in such a case under the judgment at law is entirely regular and proper; and the judge who delivered the opinion in the case states that it is the only remedy the plaintiff in the foreign attachment could resort to.

It is objected on the part of the appellants, that the appellee's attachment was issued irregularly, and was void because no such affidavit of the nonresidence of the debtor as is required by the statute, had been made and filed before the subpœ na with the endorsement of attachment issued. It has never been the practice, so far as I have been able to learn, to file an affidavit of nonresidence with the clerk, in order to authorize him to issue the subpœ na and to make such an endorsement in the nature of an attachment thereon as the plaintiff's counsel may direct. According to the long established usage of the state, such an endorsement without a previous affidavit, serves as a notice to the home defendant not to part with the effects of the debtor in his hands without leave of the court, and when served upon the home defendant, creates a lien in favor of the creditor, of which neither the absent debtor nor the garnishee, by any act of theirs, nor any third person, by any attachment or other process of law subsequently levied, could deprive him. This practice has been repeatedly recognized as regular, both by the chancery courts and the Court of appeals. Smith v. Jenny, 4 Hen. & Munf. 440; McKim v. Fulton, 6 Call 106; Williamson v. Bowie, 6 Munf. 176; Erskine v. Staley, 12 Leigh 406. An endorsement in the nature of an attachment has not, it is true, been construed to authorize the officer serving it, to take the effects out of the hands of the garnishee, or to require him to give security to have them forthcoming; nor does it operate as an injunction so as to subject a party to the penalty of a contempt for disobedience. If the plaintiff desire such a formal order of the court as will serve these purposes, he must file the affidavit according to the terms of the act; but for the purpose of a notice to the garnishee and to secure a lien upon the property, a subpœ na with an endorsement in the nature of an attachment, comes in place of the formal order of the court, and had indeed superseded it in practice, and rendered it unnecessary as early as Smith v. Jenny, decided in 1809. The act certainly does not require the affidavit to be filed before the subpœ na can issue, and I am aware of no case from which any inference can be fairly made to require it. The case of Brien v. Pittman, 12 Leigh 379, referred to by the counsel, does not so decide. The court in that case held that it was error in the court below to proceed to decree against absentees without an affidavit of nonresidence, or that upon enquiry at their usual places of abode, they could not be found. Nothing is intimated of any necessity to file this affidavit before the subpœ na issues; and it is expressly held that the answer of a defendant admitting that he was a nonresident would render any affidavit unnecessary. I think the objection cannot be sustained.

The next objection is, that the attachment was void for uncertainty, because neither the character nor the amount of the claims for which the attachment is sued out is stated in the endorsement on the subpœ na. The endorsement however is of course to be understood as referring to the bill to be filed, in which the nature and amount of the complainant's demands must be properly exhibited. It is argued, however, that a plaintiff, after issuing his subpœ na with an endorsement in general terms, and after it had been served, might purchase up other claims against the debtor, and include them in his bill, and thus practice a fraud upon other creditors who had acquired rights after his attachment had been served on the garnishee, but before his purchase of such additional claims. The answer to this is that the court cannot presume such a fraud, and must refer the ownership of the claims set up in ...