Laws

Ann Woolen Co (Supreme Post Date: Sat, 2 Aug 2008 3:58:20 +0000
The plaintiff in the attachment cannot complain because the attach- ment is not set aside in tot O It is true he may be subjected to similar applications in behalf of other parties who may have acquired distinct inter- ests, but this is not a legal ground for denying the remed Y" 1 Dolan -v Topping, 51 Ka N 321; Baird v Williams, 19 Pic K (Mas S) 381; Gilbert v Gilbert, 33 Mo App259- But see Goodbar v Sulphur Springs City Nat Bank, 78 Tex 461; Nenney v, Schluter, 62 Tex 328; Bateman v Ramsey, 74 Tex 592 New York Under the old code of New York a subsequent attaching creditor could not move to set aside a prior attachment, but section 682 of the new code was intended to put subsequent creditors or parties sub- sequently acquiring a lien upon or in- terest in the defendant's property on the same footing as the defendant under the old cod e People's Bank v Mechanics' Nat Bank, 62 How Pr ( N Y Supreme Ct) 422 See Isham v Ketchum, 46 Barb ( N Y) 43, i Abb Pr, N S ( N Y) 157, and Jacobs v Hogan, 85 N Y 243 After Judgment in First Attachment A subsequent attaching creditor may move to dissolve, notwithstanding a levy under an execution upon a judg- ment obtained in a prior attachment suit, there having been no sale and application of the proceed S Wood- mansee v Rogers, 82 N Y 88, 20 Hun ( N Y) 285, 58 How Pr ( N Y) 98 Attachments in Different Countie S A subsequent attaching creditor whose attachment has been levied in the county where the goods of the de- fendant were situated, although is- sued in another county, may move to dissolve a prior Attachment Pendle- ton v Smith, i W Va 16 Prior Lien Massachtisett S Rev Stat, C 90, 83, 84, giving to subse- quent attaching creditors and others interested in the property by subse- quent purchase, or mortgage, " or in any other manner," the right to make the motion, does not authorize a mort- gagee under a mortgage prior to the attachment to move to dissolv e Peirce v Richardson, 9 Met (Mas S) 69 Judgment CreditoRIn New Jersey a judgment creditor may move to set aside an attachment improvidently is- sue d National Papeterie Co v Kin- sey, 54 N J L 29 But not in Wiscon- si N Madison First Nat Bank v Greenwood, 79 Wi S 269 Wheie a defendant whose property had been attached subsequently ap- plied for the benefit of the insolvent laws, and a trustee was appointed to take charge of his property, a third person who subsequently recovered judgment against the debtor, and laid an attachment by way of execution in the hands of the trustee to affect the debtor's interest in the proceeds of the sale of the property seized under the first attachment, was allowed to inter- vene in the first attachment and move to quash it. Clarke v Meixsell, 29 Md 221 2 Root v Railroad Co, 45 Ohio St 228; Hoopes v Robinson, 2 CheSt (Pa) 312; Wigfall v Byne, I Rich ( S Car) 412; Copeland v Piedmont L, What must be Show N For a junior attaching creditor to success- fully attack a prior defective attachment he must affirmatively show that every step of his own procedure was regular, and the plaintiff may insist upon strict legal proof of the subsequent lien, and has the right to question its validit Y 1 d CLAIMANTS AND OTHER INTERESTED PARTIE S Persons not originally parties to the action of attachment, but who are interested in the property and in discharging it from an attach- ment wrongfully levied thereon, are entitled to come into court and move to dissolve the Attachment Thus, garnishees and claimants of the attached property may make the motion ; but third parties, strangers to the suit and not claiming an interest in the property, may not intervene and move to dissolv e 2 etc, In S Co, 17 S Car 116; Kincaid v Neall, 3 McCord ( S Car) 201; Ex p Perry Stove Co ( S Car, 1895), 20 S e Rep 980, holding distinctly that the former rule upon this point has not been changed by the South Caro- lina Code; Baker v Ayers, 58 Ark 524, citing Sannoner v Jackson, 47 Ark 31; Rice v Dorrian, 57 Ark 545 See Dixey v Pollock, 8Cal570 Under the New York Code Civ Pro , section 682, giving a person having a lien upon property attached acquired subsequent to the attachment a right to apply to vacate or modify it, he may apply on the ground of the in- sufficiency of the affidavits upon which it was issue d Steuben County Bank v Alberger, 75 N Y 179, reversing 14 Hun ( N Y) 379, 55 How Pr ( N Y Supreme Ct) 481 t See also Thal- heimer v Hays, 42 'Hun ( N Y) 93; Hoebler v Bernharth, 115 N Y 459 The contrary rule obtained under the old cod e Gere v Gundlach, 57 Barb ( N Y) 13 See also the opinion of the court in Steuben County Bank v Alberger, 75 N Y 179 1 Tim v Smith, 65 How Pr ( N Y C P I) 199; 93 N Y 87; Everitt v Everitt Mfg Co (Supreme Ct), 33 N Y St Rep 996, ii N Y Supp 508; Hodgman v Barker (Supreme Ct), 17 N Y Supp 911, affirmed in 63 Hun ( N Y)3i; Manufacturers' Nat Bank v Hall, 60 Hun ( N Y ) 466; Hodgman v Barker, 60 Hun ( N Y) 156, 20 Civ Pro Rep ( N Y) 341; Delmore v Owen,44Hun( N Y)2g6; Central Nat Bank v Ft. Ann Woolen Co (Supreme Ct), 24 N Y Supp 640, affirmed in 27 N Y Supp 1114, and in 143 N Y 624; Scharff v Chaffe, 68 Mis S 641 See Dayton v McElwee Mfg Co (Supreme Ct), 19 N Y Supp 46, 22 Civ Pro Rep ( N Y) 227; National Broadway Bank v Barker, 60 Hun ( N Y) 578, 20 Civ Pro Rep ( N Y) 338; Pitts v Scribner (Supreme Ct), 19 N Y Supp 519 2 In West Virginia any party in- terested may move to quash an at- tachment on the ground of the in- sufficiency of the facts stated in the affidavit, or that the affidavit is other- wise defectiv e Capehart v Dowery, 10 W Va 130 In Maryland any party claiming an interest in the attached property may move to dissolve for defects apparent in the proceeding S Campbell v Mor- ris, 3Har M (Md) 535; Ranahan v O'Neale, 6 Gill J (Md) 301; Stone v Magruder, 10 Gill J (Md) 386; Carson v White, 6 Gill (Md) 26; Clarke v Meixsell, 29 Md 228 Garnishe e In Maryland it is well settled that the garnishee may take advantage of any defects in the attach- ment.

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In Tennessee, by statute, motions Post Date: Sat, 2 Aug 2008 3:41:23 +0000
Johnson v Lemmon, 37 Md 336, citing Harden v Moores, 7Har J (Md)4 See Lindau v Arnold, 4 Strob H ( S Car') 290 Purchaser of Propert Y Under sec- tion 682 of the New York Code Civ Pro a purchaser from the defendant in an action of certain property against which an attachment has been issued may move to vacate the Attachment Trow's Printing, etc, Co -v Hart, 60 Ho W Pr ( N Y C P I) 190 Alabama " In May v Courtnay, 47 Ala 185, the question was whether one not a party to the record, who had an interest in the attached prop- erty, could make a motion to quash the Attachment It was held that a mortgagee whose lien has been ac- 2 Time of Moving to Dissolv e In order to have a motion to dissolve an attachment entertained it should usually be made at the return term or as soon thereafter as possible ; this is frequently required by rules of practic e 1 But the motion may also be made quired after the levy of the attach- ment could not make such motion, even for defects apparent on the face of the recor d So in McAbee v Parker, 78 Ala 573, a like rule was announce d Third persons acquir- ing an interest pendente lite in the at- tached property were held to be neither necessary nor proper parties to the suit; and it was held that they had no right to intervene for the pro- tection of their interests by moving a dissolution of the attachment or a discharge of the lev Y" Cartwright v Bamberger, 90 Ala 405 See Rea v Longstreet, 54 Ala 291 Amicus Curis e But in Planters', etc, Bank v Andrews, 8 Port (Ala) 404, it was held that amid curia and priv- ies in interest might for defects ap- parent on the face of the proceedings move to quas H Claimants of attached property may move to dissolv e Hines v Kimball, 47 Ga 587; Long v Murphy, 27 Ka N 375; Dearborn v Vaughan, 46 Ka N 508 But see White v, Mullen, i Le g Opi N (Pa) 201 And the fact that subsequent to his motion the claimant has obtained possession of the at- tached property by an action of re- plevin will not prevent the hearing and decision of the motio N Kendall Boot, etc, Co -v August, 51 Ka N 53 In Texas, under Rev Stat,art. 159, providing that an attachment issued without bond or affidavit " shall be abated on motion of defendant," a claimant of the attached property may not move to dissolv e The right is restricted to defendant S Roos v Lewyn, 5 Tex Civ App 593 In this state sureties on the replevy bond are allowed to intervene and move to quas H Burch v Watts, 37 Tex 135 Prior OwneRIn Schlesinger v McCabe, N Y Daily Reg, 9 Nov 1882, it was held ^hat the motion might not be made by a person claim- ing to be a prior owneRWhere Husband and Wife are occupy- ing a piece of property belonging to the latter as a homestead, in a suit against both in which the homestead has been attached, the husband has sufficient interest therein to move to dissolve the Attachment Rowe v Kel- logg, 54 Mich 206 But a wife may not move to quash an attachment against her husband levied upon her separate estate, her remedy being trespass against the sheriff Boscher v Roul- lier, 4 Abb Pr ( N Y Supreme Ct) 396 Plaintiff Under the Statute of Fe b 6, 1837, of Missouri, after plea in abatement by the defendant travers- ing the affidavit, it was error to dis- solve the attachment on motion of the plaintiff, who would have thereby es- caped certain cost S Mense v Os- bern, 5 Mo 544 Attachment Issued by Unauthorized Offi- ceRWhere the proceedings in at- tachment fail to show the authority of the officer to grant the attachment, or show on their face that he did not have the authority, it is of no consequence on whose motion the writ was quashe d Devall v Taylor, i McMul L ( S Car) 460 1 Hall v Brazleton, 40 Ala 406; Beecher v James, 3 111 462; Lawrence v Jones, 15 Abb Pr ( N Y Supreme Ct) no; Miltenberger v Lloyd, 2 Dal L (Pa) 79 But see Penman v Gardner, 4 Yeates (Pa) 6; Kearney v M'Cullough, 5 Bin N (Pa) 389; Tarbell v Bradley, 27 Vt 535 The rule that a motion to discharge an attachment if founded upon an ir- regularity must be made at the earliest opportunity or the delay must be excused, does not apply to motions for relief affecting the substantial rights of the part Y Swezey v Bartlett, 3 Abb Pr, N S ( N Y Supreme Ct) 444 See also Garbett v Hanff, 15 Abb Pr ( N Y Supreme Ct) 189 In Georgia the only restriction as to time is that, in order to contest the ground of the attachment, the defend- ant must file his traverse at the first ter M Parker v Brady, 56 Ga 372 See De Leon v Heller, 77 Ga 740; Irvin v Howard, 37 Ga 18; Neal v, Bookout, 30 Ga 40 Delay of Eighteen Month S The delay of the defendants for eighteen months to move to vacate an attachment is laches, and the permission of the court before the return of the summons and appearance of the de- fendant to the action upon giving reasonable notice to the plain- tiff ; * and if the alleged grounds of the attachment do not exist, a motion to vacate the writ may be made even before actual seizure of the propert Y 8 After Pleading to the Merit S In some states, as in Alabama, Louisiana, Mississippi formerly, Pennsylvania, North Carolina, and South Carolina, it is too late to make the motion after appearance and plea to the merits filed by the Defendant 3 And in Montana the 3 Alabama Hazard v Jordan, 12 Ala 180; Drakford v Turk, 75 Ala 339; Gill v Downs, 26 Ala 670; Steam- boat Farmer v McCraw, 31 Ala 659; Brown v Coats, 56 Ala 439 Louisiana Myers v Perry, i La An N 372; Brinegar v Griffin, 2 La An N 154; Ealer v McAllister, 14 La An N 834 ; Watson v M'Allister, 7 Martin ( La) 368; Enders v Steamer Henry Clay, 8 Ro b ( La) 30 in such a case to the plaintiff's counsel to read affidavits as to occurrences in the action since the granting of the attachment was not substantial erroRHaebler v Bernharth (Superior Ct), 9 N Y Supp 725 Delay of Court. In Tennessee, by statute, motions to set aside attach- ments, issued on the ground of the nonresidence of the debtor, may be granted upon application and good cause shown within twelve months after the issuing of the Attachment "It is not the action of the court, but that of the party complaining, that is limited to twelve month S The party having done all required of him, de- lays and continuances by courts, their incompetency, as in this case, or their failure to meet, cannot divest him of the right invested by his application, showing good caus e" Bledsoe v Wright, 2 Baxt (Tenn) 471 Motion on the Tria L Where a rule of court provided that no exceptions should be heard against an attachment except those contained in the answer, it was held not too late to move for a dissolution after the trial had begu N Shewell v Ston e 12 Martin ( La) 386 1 " The very point was considered in Palmer v Bosher, 71 N Car 291, where it was held that the defendant need not wait until the return term of the court, but might voluntarily ap- pear at any time and move the judge to vacate the attachment the court remarking upon the hardship it might inflict upon a defendant, whose prop- erty had been seized under an irreg- ular process, if he were compelled to postpone, perhaps for six months, a motion to vacate it.

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Dulin -v McCaw ( W Post Date: Sat, 2 Aug 2008 3:24:21 +0000
" Wilson v Louis Cook Mfg Co, 88 N Car 5 The defendant need not wait until he has filed an answer or demurrer to the petitio N Quinlan v Danford, 28 Ka N 507 2 Winona First Nat Bank v Ran- dall, 38 Min N 382 North Carolina Garmon v Bar rin- ger, 2 Dev B (N Car) 502; Symons v Northern, 4 Jones (N Car) 241 South Carolina Stoney v M'Neill, Har P ( S Car) 156; Gray v Young, Har P ( S Car) 38; Callender v Dun- can, 2 Bailey ( S Car) 454 United State S See Bims v Williams, 4 McLean (U S) 580 Mississipp I Bishop v Fennerty, 46 Mis S 570 A defendant in attachment having a plea in abatement pending could not, till after that was determined, plead to the action, without waiving the issue in Abatement Lewenthall v Mississippi Mills, 55 Mis S 101 Contra, Parker v Brady, 56 Ga 372 This rule in Mississippi has been changed by the Act of 1878 Bates v Crow, 57 Mis S 676 See Smith v Cromer, 66 Mis S 157 Pennsylvania Memphis, etc,RCo v Wilcox, 48 Pa St 161; Malone v Lindsley, i Phi La (Pa) 288; Steam- ship Co v Fruit Co, 2 Pa Co Ct Rep 123; Bocker v Saurman, 9 W N C (Pa) 403 After the filing of an affidavit of defense it is too late to move to dissolv e Yost v Ginley, 2 Le g Re C (Pa) 372; Loewenstein v Sheets, 7 Phi La (Pa) 361 Where, under the Act of March 16, 1869, property has been attached for fraud, and an answer thereto filed by the defendant which merely denies motion must be made before the expiration of the time allowed for answerin g 1 Before and after Entry of Judgment. But in most States, as in Arkan- sas, Kansas, Kentucky, Maryland, Nebraska, and Wyoming, the motion may, upon reasonable notice to the plaintiff, be made at any stage of the action before the entry of final judgment ; 2 and the fraud and does not go into the merits of the case, the defendant is not estopped thereby from moving to dissolve the Attachment Harrisburg Boot, etc, Co v Johnson, 3 Pa DiSt Rep 433 Illinoi S A plea in abatement to a writ of attachment is not waived by the filing of a plea to the merit S Hawkins v Albright, 70 111 87 And the right to move to dismiss for the failure to file the declaration within the appointed time is not waived by a ^lea in abatement of the writ Stoddard v Miller, 29 111 291 But see Beecher v James, 3 111 462 In Michigan, appearing and pleading in the case do not preclude the de- fendant from applying for dissolution of the Attachment Hyde v Nelson, ii Mich 353 But where the defend- ant goes to trial on the merits he waives all prior irregularitie S Crane v Hardy, i Mich 56 And after the defendant is defaulted it will be too late to move, it seem S Rollofson v Hatch, 3 Mich 277 In West Virginia, the appearance of a nonresident and the filing of her answer are not a waiver of her right to vacate a foreign attachment on the ground of the insufficiency of the affi- davit. Dulin -v McCaw ( W Va , 1894), 20 S E Rep 681 1 "Substituted Motio N" And no advantage is gained by calling a motion made too late a "substituted motion" when it is really the original motio N "The statutory period is a limitation, and a motion to discharge an attachment filed after such period cannot be legally entertaine d" Magee v Fogerty, 6 Mont 237 Further Time for Answerin g The motion must be made within the time allowed for answering mentioned in the summons, and cannot be made after the expiration of this time, although demurrer has been inter- posed and further time allowed for answerin g " We cannot believe that the legislature, by the use of this phrase [time of answering] intended to allow a defendant all the time within which to make his motion to dis- charge the attachment to be obtained by a motion or demurrer, which might be frivolous and made for the purpose of dela Y" Per Staats, J, in Vaughn v Dawes, 7 Mont 360 See Wallace v Lewis, 9 Mont 399 By Changing the Venue the time for making a motion to discharge will not be enlarged, when one motion to dis- charge has been overruled without prejudice upon the venue being change d Wallace v Lewis, 9 Mont Kansa S Quinlan v Danford, 28 Ka N 507; Doggettz'.

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Where a motion has been Post Date: Sat, 2 Aug 2008 3:11:23 +0000
Bell, 32 Ka N 298; Smith-Frazer Boot, etc, Co v Derse, 41 Ka N 150; Guest v Ramsey, 50 Ka N 709 KentucKy Taylor v Smith, 17B Mo N (Ky) 542 But see Meggs v Shaffer, Har d (Ky) 70 In Maryland a motion to quash an at- tachment fora substantial defect in the proceedings maybe made at any stage of the trial, as it goes to the question of jurisdictio N It may be made after issues joined and testimony take N Evesson v Selby, 32 Md 340, citing Bruce v Cook, 6 Gill J (Md) 346; Stone -v Magruder, 10 Gill J (Md) 387- Nebraska Rudolph v McDonald, 6 Neb 163; Hilton v Ross, 9 Neb 406; Reed v Maben, 21 Neb 696 . Motion Made, but not Ruled Upon before Judgment. Where a motion has been made and heard before the trial, and the decision held sub curia, it may be ruled upon after judgment has been given for the plaintiff Moline v Curtis, 38 Neb 520; Stutzner v Printz ( Neb, 1895), 61 N W Rep 620 Wyoming Cheyenne First Nat Bank v Swan, 3 Wyoming 356 In Florida if a motion to dissolve be made after the defendant has appeared and pleaded to the action, the plaintiff may still proceed in his suit and pros- ecute his claim to final judgment, in Nfiv York it may even be made thereafter at any time before the actual application of the attached property to satisfy the judgment.

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A subsequent lienor will not Post Date: Sat, 2 Aug 2008 2:59:08 +0000
1 though the attachment may be dis- solved ; but it is otherwise if the attach- ment is dissolved before plea to the ac- tio N In the latter case the suit abate S Kennedy v Mitchel L 4 Fla 457 After Impaneling Jur Y Where a motion to dissolve was made both upon a traverse of the affidavit and the illegality of the bond, and after a jury had been impaneled to try the issue, but before any evidence had been given, counsel for the defendant asked the court to rule upon the legality of the bond, but the request was refused ; and, after the verdict on the issue, counsel again asked for a ruling on the legality of the bond, which was again denied " because not made until after the jury was impaneled to try the ground of frau d" Held, that the re- fusal was erroneou S Forbes v Porter, 25 Fla 362 Georgia In Black v Scanlon, 48 Ga 12, it was held that a motion to dis- miss on account of a defective affidavit could be made at any ti Me Minnesota Under Ge N Stat1878, C 66, 158, providing that a defendant may move to vacate an attachment " before the time for answering ex- pires, or at any time thereafter when he has answered, and before trial," he may move to vacate at any time so long as his answer stands undisposed of, although it contains an insufficient defens e Winona First Nat Bank v Randal L 38 Min N 382 1 Thompson v Culver, 38 Barb ( N Y) 442, 15 Abb Pr ( N Y Su- preme Ct) 97, 24 How Pr ( N Y Su- preme Ct) 286; Zerega v Benoist, 7 Robt ( N Y) 199, 33 How Pr ( N Y SupeRCt) 129; Bowen v Medina First Nat Bank, 34 How Pr ( N Y Supreme Ct) 408; Rowles v Hoare, 61 Barb ( N Y)266, citing Gasheriez'. Appl e 14 Abb Pr ( N Y SupeRCt) 64 See, contra, Spencer v Rogers Lo- comotive Works, 13 Abb Pr ( N Y SupeRCt) 180; Schieb v Baldwin, 22 Ho W Pr ( N Y SupeRCt)278; White- side v Oakman, I Dal L (Pa) 294; Dow v Smith, 8 Ga 551 Sufficient Answer to Lache S It is a sufficient answer to a charge of laches against the assignee of a debtor so moving to vacate, that he had expected the property assigned to sell for a suf- ficient amount to pay all debts, and that it would thus have been a useless expense to have made such motion, but that the property had finally been sold for much less than had been ex- pecte d Kahle v Muller, 57 Hun ( N Y) 144, ii N Y Supp 26 See also Thalheimer v Hays, 14 Civ Pro Rep ( N Y Supreme Ct) 232 Mere Levy under Execution not Suffi- cient. A subsequent lienor will not be estopped to move to vacate by reason of the mere levy on the attached prop- erty under an execution, without actual application of the property to satisfy the judgment.

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Minnesota Under C Post Date: Sat, 2 Aug 2008 2:46:17 +0000
Woodmansee v Rogers, 82 N Y 88 This Practice Anomalou S "The right of the defendant to move after final judgment, and an execu- tion issued, seems to be an anomaly, and would not be sustained except upon imperative necessity demanded by the absolute construction of the provisions of the code, for the reason that, upon the issuing of the execution and the levy of the attached property under it, the attachment itself for all purposes ceased to exiSt Its office had been performed and the property was in custodia legis under another process, which was altogether distinct from the attachment itself and founded upon an entirely different result. But there seems to be no doubt about the inten- tion of the legislature to extend the remedy down to the period named, be- cause of the use of the words ' before the actual application of the attached property, or the proceeds thereof to the payment of the judgment recov- ered in the actio N'" Per Brady, J, in Parsons v Sprague, 100 N Y 632, 30 Hun( N Y) 19 In Wisconsin an attachment issued upon a defective affidavit may be va- cated at any time, even after judg- ment, as the writ in such case is void, and not merely irregulaRGoodyear Rubber Co v Knapp, 61 Wi S 103, explaining Jarvis v Barrett, 14 Wi S 591. Minnesota Under C no, Laws of 1885, which provides that, after the ex- piration of three years from the levy- ing of an attachment without judg- More than One Motio N After one motion to dissolve has been refused, another will not be entertained without special leave of court.

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McDonald v Clark, 53 Min Post Date: Sat, 2 Aug 2008 2:26:48 +0000
1 On Appeal from Justic e And where a motion to dissolve for defects in the affidavit has not been made in an attachment before a justice of the peace, it is too late to make the objection on appea L 58 3 To Whom Application should be Addressed Discretion of Court A motion to quash an attachment for irregularities in the proceed- ings is addressed to the sound discretion of the court. 3 ment having been entered in the action, any person having an interest in the attached property may move to dis- solve the attachment, etc , such motion may not be made after the entry of final judgment, although more than three years have elapsed between the levy of the attachment and the entry of the judgment. McDonald v Clark, 53 Min N 230 Setting Aside Irregular Judgment.

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Whether or not the defect Post Date: Sat, 2 Aug 2008 2:13:11 +0000
Where a judgment upon service by publication was rendered in a suit by attachment, upon an affidavit not war- ranted by the statute, the defendant not appearing in the action, the judg- ment was set aside for irregularity after the lapse of several year S Alex- ander v Haden,2 Mo 228 1 Livingston v Coe, 4 Neb 379; Stutzner v Printz ( Neb, 1895), 61 N W Rep 620 See Steuben County Bank v Alberger, 83 N Y 274, 61 Ho W Pr ( N Y) 227, where it was held that the court might entertain a second motion to the same effect, made on other grounds, although these might have been urged on the first motio N And in Thalheimer v Hays, 42 Hun ( N Y) 93, it was held that, under section 683 of the N Y Code Civ Pro, an interested party may, as a matter of right, move to dis- miss an attachment granted upon the ground that the defendants had dis- posed of their property with an intent to defraud their creditors, upon affi- davits disproving or explaining the case made by the plaintiff, although a motion to vacate the attachment, founded upon the papers used by the plaintiff in procuring it, has already been made and denie d After making an order denying a motion to dissolve an attachment, it is error for the court to enter again upon the question of dissolutio N Sheppard v Guisler (Wash, 1894), 38 Pac Rep 759- 2 Horton v Miller, 84 Ala 537 But see Meyers v Boyd, 37 Mo App 532 After Choosing Arbitrator S A motion to dissolve is too late after the entry of a rule of reference and the choos- ing of arbitrator S Raub v Morton, i L T, N S 271, 2 L T, N S 9 3 Holland v White, 120 Pa St 228; Campbell v Morris, 3Har M (Md) 535 See Howard -v Oppen- heimer, 25 Md 365; Lambden v, Bowie, 2 Md 338; Ranahan v O'Neale, 6 Gill J (Md) 301; Barr v Perry, 3 Gill (Md) 323; Clarke v Meixsell, 29 Md 227; Gover v Barnes, 15 Md 576; Stewart v Katz, 30 Md 334; Potomac Steamboat Co v Clyde, 51 Md 174 Authority of Court AS the court has power to control its process, it may entertain a special motion to dis- charge an attachment for irregularity or impropriety in its issue without special statutory authorit Y Morgan v Avery, 7 Barb ( N Y)6s6; Branson v Shinn, 13 N J L 250 Continuation of Hearing on Motio N Upon the application of a party against whom a motion to dissolve has been decided, the judge may continue the hearing on the motion after he has an- nounced his decisio N Hanna v Bar- rett. 39 Ka N 446 Motion Addressed to Court, not to Jur Y On the trial of a motion to discharge, the defendant is not entitled to a trial by jur Y Wearne v France, 3 Wyo- ming 273; Windt v Banniza, 2 Wash 147 But where the jury, instructed by the court, found against the de- fendant, and also on certain imma- terial issues raised by superfluous pleadings and redundant evidence which should have been submitted to the court, the irregularity was not such as to warrant the setting aside of the order dismissing the motion to dissolv e Harmon v Jenks, 84 Ala 74, Submission to Jur Y A plea in abatement, however, denying the allegations of the affidavit raises an issue of fact, and in some states must be submitted to a jur Y 1 At Chamber S The motion to quash is frequently allowed to be made before a judge at chamber S 8 See article CHAMBERS AND Judge Granting Attachment And it is not in all cases necessary that it be addressed to the same judge who granted the Attachment 3 Defect not Apparent upon Face of Pro- ceeding S In Harmon v Jenks, 84 Ala 74, it was said by Clopton, J: " A motion to dissolve an attachment is for the decision of the court, and not of the jur Y If the defect does not appear from the proceedings, evi- dence may be received in support or discharge of the rule, but the suffi- ciency of the evidence should be passed on by the court. Whether or not the defect appears from the proceedings, the court must determine the motio N" See also Hart v Kan- a dy, 33 Tex 720 Trial of Motio N In Louisiana the de- fendant is entitled to a summary trial of his motion to vacat e Allen v Champlin, 32 La An N 511 For Appealability of Orders granting oRrefusing motions to vacate, set aside, or dissolve attachments, see article APPEALS, Vo L I I, p 119 1 Hart v Kanady, 33 Tex 720 See Fleming v Bailey, 44 Mis S 132 But see Walls v Campbell, 125 Pa St 346 Trial of the Travers e In a proper case it may be submitted to a jury whether the debtor has established the allegations of his petitio N Matter of Leonard, 3 How Pr ( N Y Su- preme Ct)3i2; Capehart v Dowery, 10 W Va 130 But it is not error for the court to try the issue without a jury where the defendant expresses a wish that it should do so, and the plaintiff declines to express any wish for a jur Y Claflin v Steenbock, 18 Gratt ( Va) 842 In either case the plaintiff is required to establish the truth of the allegations to the satis- faction of the court or judg e Citi- zens' State Bank v Baird( Neb, 1894), 60 N W Rep 551 Time of Tria L The traverse by the defendant of the plaintiff's affidavit should be tried either before or with the main case, unless there is legal ground for continuance; but nothing which works a continuance of the traverse only should postpone the main cas e Parker v Brady, 56 Ga 372 Venu e The trial of the issues of fact raised upon the traverse of the affidavit must be had in the county where the suit is pendin g Canova v Colby, 16 Fla 167 2 Cohen v Burr, 6 Wi S 200; Gene- see County Sav Bank v Michigan Barge Co, 52 Mich 164, citing Gray v York, 44 Mich 415 See also Dun- lap v Dillard, 77 Va 847 Kansa S Shedd v McConnell, 18 Ka N 594; Wells v Danford, 28 Ka N 487 A district judge may hear at chambers a motion to dissolve an at- tachment where appearance is made and there is no objection, although at that time the regular session of the court is held in the same county with a pro-tern, judg e Swearingen v Howser, 37 Ka N 126 But see Kohn v Justice, I Ka N 220; and in Reyburn v Bassett, McCahon (Ka N) 86, it was held under the code that a judge was not authorized to dissolve an attach- ment during vacatio N Notice to Defendant Notice of the motion should be given to the defend- ant.

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Vinton v Mead, 17 Mich Post Date: Sat, 2 Aug 2008 1:58:28 +0000
Cureton v Dargan, 12 S Car 122 See Claflin v Lisso, 31 La An N 171; Harrison Mac H Works v Hosig, 73 Wi S 184, and see following cas e 3 Application to ' ' Court " and to "Judg e" In New York an applica- tion made to the court to vacate an attachment need not be made before the judge who granted the writ; but it is otherwise when made to the judge, the statute providing for both cases, and distinguishing between applica- tions to the court and to the judg e On application to the court the moving party becomes subject to the usual rules in regard to notice, time, and place of hearing; but an application to the judge may be made out of court, and is subject to his direction whether it shall be heard ex parte or upon no* 4 Mode of Dissolving A IN GENERA L Attachments may be dissolved by traversing in the motion for dissolution the facts al- leged in the affidavit as grounds for the attachment, 1 by pleading some irregularity of a fatal character in the proceedings, or by giving bond to the sheriff to pay the debt, thereby releasing the propert Y 3 tic e Ruppert v Haug, 87 N Y 141, 62 How Pr ( N Y Supreme Ct) 364 See Conklin v Dutcher, 5 How Pr ( N Y) 386; White v Featherstone- haugh, 7 How Pr ( N Y Supreme Ct) 357; Lansingburgh Bank v McKie, 7 Ho W Pr ( N Y Supreme Ct) 360 In Kansas an attachment granted by a probate judge, on the alleged ground of fraud by the defendant in contract- ing the obligation, may be discharged by the district judge, because the pro- bate judge is not authorized to grant an attachment in such a cas e Buck v Panabaker, 32 Ka N 466 In Michigan, under the Act of 1851, a circuit court commissioner was au- thorized to dissolve an attachment levied on land, Edgarton v Hinch- man, 7 Mich 352; and the statute au- thorizing a circuit court commission- er to dissolve attachments applied equally to the Circuit and the Justice's Courts, Albertson v Edsall, 16 Mich 203 But the circuit court commis- toner can dissolve the attachment only for reasons going to show that the plaintiff " has not a good and legal cause for suing out such writ," which includes only an inquiry into the facts and sufficiency of the affidavit. Other defects in the proceedings must not be passed upon by the commissioner at chambers, but by the court. Vinton v Mead, 17 Mich 38 Title of Proceeding S The proceed- ings before the commissioner need not be entitled in the original caus e Heyn v Farrar, 36 Mich 258 Disqualification of the Commissioner for the Count Y Where the only cir- cuit court commissioner for the county is disqualified from hearing a motion to dissolve by reason of his being the law partner of the plaintiff's attorney, ihemattermay betaken before the com- missioner in an adjoining county, and it is not necessary in such case that the application should be made to the circuit judg e Heyn v Farrar, 36 Mich 258 Dismissal without Order of Court.

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17, the plaintiff cannot dismiss Post Date: Sat, 2 Aug 2008 1:41:28 +0000
An attachment may not be discontinued by agreement of the parties out of court, but only on application in open court after return of the writ Cum- mins v Blair, 18 N J L 151 And the parties to the attachment can- not dismiss the cause during term, so as to affect the rights of third persons, without an order of court. McLain v Draper, 109 Ind 556 Under Civ Code Kansas, art. 17, the plaintiff cannot dismiss his case, and thereby relieve himself from lia- bility on the bond, wit-hout an order or judgment of the court.

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