Laws

Stevenson v O'Hara, 27 Ala Post Date: Sat, 2 Aug 2008 9:13:45 +0000
3 Clerk Arkansa S No writ issuing out of and returnable to a court of record in this state can be issued by any officer or person other than the clerk of such court. Troy v Bower, 3 Ark 352 Alabama Under the code, provi- sions authorizing a clerk of the court to issue an attachment for the collec- tion of "any moneyed demand the amount of which can be certainly ascertained," and in other cases au- thorizing a judge only to issue the attachment, the clerk may issue an attachment to recover damages for the removal of property upon which the plaintiff had a landlord's lie N Atkinson v James, 96 Ala 214 The clerk of the City Court of Mo- bile has no power to issue an original attachment. Stevenson v O'Hara, 27 Ala 362, reaffirmed in Matthews v Sands, 29 Ala 136 Clerk not Specially Authorize d The clerk of a court vested by statute with all the powers of the Circuit Court, who is not specially authorized to issue attachments, cannot issue them, though by the General Statutes clerks of the Circuit Court are empowered to issue attachment S An attachment issued by such clerk has been held void, and sufficient ground, on error, for reversing a judgment by default thereo N Stevenson v O'Hara, 27 Ala 362; and see Matthews v Sands, 29 Ala 136; Flash v Paul, 29 Ala 141; Lewis v Dubose, 29 Ala 219 In Kentucky, prior to the amend- ment of section 238 of the code by the Act of April 5, 1888, a clerk was not au- thorized to grant an attachment for a debt not du e Kleine v Nie, 88 Ky 542 In Minnesota the issuance is a ju- dicial act, and thus cannot constitu- tionally be allowed by a cler K Mor- rison v Lovejoy, 6 Min N 183; Zim- merman v Lamb, 7 Min N 421 But an Attorney may issue a gar- nishee summons upon filing the affi- davit, without an allowance by a judicial officeRHinkley v St An- thony Falls Water Power Co, 9 Min N 55- In North Carolina the writ may be issued by the clerk of the county court.

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Jeter, 65 Ala 222 Deputy Post Date: Sat, 2 Aug 2008 8:58:00 +0000
Cherry v Nelson, 7 Jones ( N Car) 141 In Tennessee previous to the Act of 1852, C 365, ii, clerks of courts had no authority to issue writs of at- tachment. Morris v Davis, 4 Sneed (Tenn) 452 1 In Minnesota a warrant of attach- ment issued by the clerk without an allowance thereof by the judge is un- authorized and void as concerns the parties who procure its issu e Jacoby v Drew, n Min N 408; Merritt v St Paul, ii Min N 223, citing Morrison v Lovejoy, 6 Min N 183; Zimmerman v Lamb, 7 Min N 423; Guerin v Hunt, 8 Min N 477 In Vacatio N Under section 19 of the Act of 1876 the county clerks were authorized to issue writs of attach- ment in vacation without an order of the court or judg e Byers v Bran- non (Tex, 1892), 19 S W Rep 1091 See Howell v Dickerman, 88 Mich 369 See also II I, 2, b, note 5, supr A 2 Finn v Rose, 12 Iowa 565 See A M Eng Enc Y Law, tit DEPUTIE S The deputy may issue the writ in the name of his principa L Minniece z 1 . Jeter, 65 Ala 222 Deputy who has not Taken Oath of Offic e An attachment was not void- able because issued by a deputy clerk who had not taken the oath of office, but who was acting under the ap- pointment of his principal and thus was a de facto officeRJoseph v Caw- thorn, 74 Ala 411 3 Thus a justice of the peace can- not issue a writ of attachment return- able to the Circuit Court, and a law authorizing him to do so has been held unconstitutional and voi d Troy v Bower, 3 Ark 352 Nor can a justice of the peace of one county, in the absence of statutory provision, issue an attachment return- able to another count Y A writ so issued may be objected to on appeal, though objection was not made in the lower court.

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Rome First Nat Bank v Post Date: Sat, 2 Aug 2008 8:42:52 +0000
Caldwell v Meador, 4 Ala 755; Brooks v Godwin, 8 Ala 296; Dew v State Bank, 9 Ala 323 Officer intereste d And an attachment should not be granted by an officer who is interested in the cas e 1 Formal Entry of OrdeRUpon issuing the writ or order for an at- tachment it is unnecessary and superfluous for the officer to make a formal entry directing himself to allow the writ or order, for the very issuance of it is sufficient evidence of his allowance thereof 2 And a notary is without authority to issue an attachment returnable to the circuit or city court S Vann v Adams, 71 Ala 475; Nordlinger v Gordon, 72 Ala 239; Jackson v Bain, 74 Ala 328 In Georgia, however, an attachment may be issued by a justice of the in- ferior court returnable to the superior court. Wanet v Corbet, 13 Ga 441 And an officer of one county may issue an attachment returnable to the courts of anotheRCox v Felder, 36 Ga 597 But sections 3927, 3928 of the code, authorizing the issuing of an attach- ment in certain cases by the judge of the superior court, do not contem- plate a return of the writ before any other court. Rome First Nat Bank v Ragan, 92 Ga 333 1 Thus a county judge who is a stockholder and director of a bank is not competent to act in the issuing of an attachment in which the bank is intereste d King v Thompson, 59 Ga 380 But an attachment was not rendered invalid by the fact that it was issued by a notary public who was a coem- ploy6 with one of the plaintiffs in a bank in which the latter was also a stockholdeRGeorgia Ice Co v Por- ter, 70 Ga 637 By Clerk in His Own Cas e Where a clerk of court acts ministerially in is- suing writs of attachment he may issue a writ in an action in which he is plaintiff upon making the necessary affidavitbefore some person authorized byla W Evans z'.

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Davis -v Jenkins, 46 Ka Post Date: Sat, 2 Aug 2008 8:24:16 +0000
Etheridge, 96 N Car 42, where it was said to be the practice in North Carolina for clerks to issue process either for or against them- selve S 2 In Arkansas the order of attach- ment issued by the clerk, " in the ab- sence of an order of the court or judge, is conclusive evidence that he granted it, and of the amount for which it was allowe d A,n order in writing made by the clerk directing himself to issue the order of attachment for a speci- fied amount would be a superfluous proceeding and is wholly unnecessar Y People's Sav Bank, etc, Co v Batchelder Egg Case Co, 4 U S App 603" Baker v Ayers, 58 Ark 524 KentucKy Under the amendment of April 5, 1888, to sections 237, 238 of the code, allowing a clerk to issue an attachment upon a debt not due with- out the order of another officer, the clerk need not make an order to himself for the issuing of the writ Ouer- backer v HB Claflin Co (Ky, 1894), 28 S W Rep 506 In Nebraska it is not necessary to the validity of a writ of attachment issued by a county judge in a case com- menced before him that he should spread upon his docket a formal order for the Attachment The issuance of the writ is itself the ordeR"As the county judge is his own clerk, there is no reason why he should make a written order authorizing and directing himself to issue an at- tachment; but when he grants an attachment on a debt not due, in a case where the writ is to be issued by the clerk of the district court, the judge must make an order allowing the at- tachment and sign the same officially, since the clerk has no jurisdiction to issue a writ of attachment on a debt before due, unless the order has been allowed by his court or a judge thereof, or the county judg e" Per Norval, J, in Winchell v McKinzie, 35 Neb 813 Omission of Entry New Jerse Y The entry by the clerk of the issuing of the writ is merely directory, and his omission to do so cannot vitiate it. Morrel v Buckley, 20 N J L 667; Morrel v Fearing, 20 N J L 672 Texa S Where the clerk must pass upon the sufficiency of the bond, when it meets with his approval, he need not make a formal entry thereof The issuing of the writ is sufficient proof of his approva L Griffith v Robinson, 19 Tex 219 b TIME OF ISSUANC e The writ may be issued at any time after the commencement of the suit and before the entry of judgment, 1 and for the purposes of issuing the attachment the action will generally be deemed to have been commenced when the summons was issue d It may be issued simultaneously with the issuance of the summons, or afterwards, 2 but will be void if issued previous thereto, 3 although when properly issued it will not In Georgia a written order granting the attachment appears to be the more regular and convenient practic e Loeb v Smith, 78 Ga 504; Gazan -v Royce, 78 Ga 512 In Louisiana an order granting the attachment is necessary by the terms of the statut e Purdee - U Cocke, 18 La 482 1 After Verdi Ct Thus, an attach- ment may be issued after verdict, if issued before the entry of judgment. Davis -v Jenkins, 46 Ka N 19 Plaintiff Entitled to Judgment.

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Low v Henry, 9Cal538 Warning Post Date: Sat, 2 Aug 2008 8:04:53 +0000
The fact that the plaintiff was entitled to judgment when the attachment issued was no cause for setting it asid e First Nat Bank v Bushwick Chemical Works (Supreme Ct), 6 N Y Supp 313 Attachment on Judgment. Under the Act of 1834, C 139, of Maryland, a writ of attachment on judgment could not issue after the lapse of three years without a scire facia S Boyd v Tal- bott, 7 Md 404 The suing out of a writ of garnish- ment before the return of " no property found " on an execution is an irregular- ity sufficient to cause the setting aside of the writ upon application of the de- fendant in execution, but may not be availed of in a collateral proceeding by the defendant or his assigne e Sessions v Stevens, I Fla 269 2 New York Section 227 of the code, providing that for the purposes of issuing an attachment an action shall be deemed commenced when summons is issued, provided service or publication is made within thirty days, applies to all courts having au- thority to issue attachment S Alien S Meyer, 73 N Y I See Kerr v Mount, 28 N Y 659; Webb v Bailey, 54 N Y 164; Betzemann -v Brooks, 31 Hun ( N Y) 271; Blossom v Estes, 22 Hun ( N Y) 472, affirmed in 84 N Y 614; Cossitt v Winchell, 39 Hun In Nebraska " an action is to be con- sidered commenced, so far as the right to issue a writ of attachment is concerned, as scon as the petition is filed in the proper court, and summons is issued thereon with a bona-fide in- tention that it shall be serve d Har- gan v Burch, 8 Iowa 309; Reed v Chubb, 9 Iowa 178; Bell v Olmsted, 18 Wi S 69" Coffman v Brandhoeffer, 33 Neb 279 In Colorado under section 29 of the code, even during the existence of the amendment of 1885, the writ might be issued at the same time the sum- mons was issue d It was not neces- sary to wait until the action had been " commenced " by the service of the summon S Schuster v Rader, 13 Colo329 Minnesota " It is not necessary under our statute that an action be pending at the time the attachment issues; it may issue at the time of issuing the summons, or afterward S Ge N Stat C 66, 128 * * * The at- tachment may therefore be issued simultaneously with the summons, and as the issuing of the summons is- required to be concurrent with or prior to the issuing of the attachment, it will be presumed, prima facie, in an action in a court of superior jurisdic- tion, that the summons issued at or before the time at which the attach- ment issue d" Blackman v Wheaton, 13 Min N 326 In Tennessee an ancillary attachment, whether issued on a cause of action ex delicto or ex contractu, may issue simultaneously with the original sum- mon S Thompson v Carper, n Humph (Tenn) 542; Barber v Den- ning, 4 Sneed (Tenn) 267; Walker v Cottrell, 6 Baxt (Tenn) 257 3 An attachment issued before the issuance of the summons in the suit is void, and the subsequent issuance of the summons cannot cure it. Low v Henry, 9Cal538 Warning OrdeRIn Kentucky an attachment issued before a summons is issued or a warning order made is void, as the action has not been "com- be invalid because served prior to the service of the summon S 1 Before Papers Presented to OfficeRThe writ, however, may never be issued by an officer before the papers for the attachment, espe- cially the affidavit and bond, have been presented to hi M 2 Interval between Filing Papers and Issuing writ Nor, after the filing of the papers, should too great a length of time be allowed to elapse before the writ is issue d But what will constitute too great an interval must depend upon the special circumstances of the cas e 3 menced " in such cas e Kellar v Stanley, 86 Ky 240, citing Hall v Grogan, 78 Ky N In Texas it is irregular and errone- ous to issue a writ of attachment be- fore the filing of the petitio N Cordova v Priestly, 4 Tex 250; Wooster v McGe e i Tex 20; Fowler v Poor, Dallam (Tex) 401; Bowers v Chancy, 21 Tex 363 1 In New York the amendment in 1866 to section 227 of the code merely confirmed this practic e Webb v Bailey, 54 N Y 164 It is sufficient if the summons has been made out and is in a condition to accompany the service of the Attachment American Exchange Nat Bank v Voisin, 44 Hun ( N Y) 85 In Iowa the writ is not invalid be- cause it was issued and the attachment levied before the original notice to the defendant of the pendency of the suit was delivered to the sheriff and returned by hi M Elliott v Stevens, 10 Iowa 418 2 A writ issued before the filing of an affidavit will be quashed on motio N Skinner v Beshoar, 2 Colo383 Before Filing of Petitio N An attach- ment issued several hours before a petition was filed, though on the same day, and upon the filing of affidavit and bond, was held voi d Seibert v Switzer, 35 Ohio St 661 Affidavit Made and Writ Issued Simul- taneousl Y Where it was argued by counsel that the language of the affi- davit implied that it was made sub- sequent to the issuance of the writ, the court (Graves, J) said: " The affidavit was made the same day the writ was issued, and it speaks of being annexed to the writ The pre- sumption is that the writ did not pass from the clerk's hands until the affi- davit was made, and it is of no conse- quence whether the attachment was or was not filled out before the making of the affidavit.

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16, Rev Code of Mississippi Post Date: Sat, 2 Aug 2008 7:50:56 +0000
Where two acts are done at the same time, that shall take effect first which ought in strictness to have been done first in order to give it effe Ct Claflin v Thayer, 13 Gray (Mas S) 459; Carleton v Ashburnham, 102 Mas S 348; Plowden 459" Hub- bardston Lumber Co v Covert, 35 Mich 254 Under the Act of 1889 of Michigan, No 149, 32, providing that an at* tachment for a debt not due shall not be issued by the clerk until an affi- davit has been made and presented to a judge and been indorsed by him, an attachment was held void where the writ was attached to the affidavit and both exhibited together to the judge, who indorsed his order of al- lowance on the writ, which was then issued by the clerk without reading the ordeRHowell v Dickerman, 88 Mich 369 Issuance by Clerk upon Receipt of Papers while Away from Offic e A writ of attachment was not invalid because issued to the sheriff by the clerk a few minutes before the papers for the at- tachment were filed in the clerk's office, when the papers had been received by him before such issue, while away from his offic e At any rate, the levy by the sheriff became effectual and binding for all purposes against the defendant and all others, who acquired no rights before the papers were prop- erly filed in the clerk's offic e People's Sav Bank, etc, Co v Batchelder Egg Case Co, 4 U S App 603, 51 Fed Rep 130; Helena Bank v Batchelder Egg Case Co, 4 U S App 614, 51 Fed Rep 137; Helena First Nat Bank v Batchelder Egg Case Co, 4 U S App 615, 51 Fed Rep 138 3 Eleven Day S Where the plain- tiff was a resident of the county where the attachment was sued out and within easy communication by railroad of the county seat, eleven days was held an unreasonable lapse ofime be- tween the making of the affidavit and the issuance of the writ Foster v Illinski, 3 111 App 345 But an af- Sundays and Holiday S Where the granting of the attachment is held to be a judicial act, the writ may not be issued on Sunday or a holida Y 1 Order of Issu e Where several writs of attachment are sued out by different plaintiffs against the same defendant, they should be issued in the order in which the preliminary papers were received and the writs demande d 2 C To WHOM DIRECTE d The writ should be directed to a proper officer, but it will be sufficient to describe him by his title of office without naming him, and even though directed to the wrong officer the writ will not be void if it is shown that it was received and served by the proper officeR3 fidavit of an unpaid debt made on the 5th of a month, but not filed until the i6th of the same month, was sufficient to justify the issuance of the writ on the latter date, the presumption being that the debt remained unpai d O'Neil v New York, etc, Mi N Co, 3 Nev 141 See McClanahan v Brock, 46 Mis S 246 Lapse of a Ter M An attachment should be issued as of the term at which it was awarde d But where a term intervened before the issuing of the attachment it was held only an ir- regularity, not rendering the judgment voi d Barney v Patterson, 6Har J (Md) 182 1 In Merchants' Nat Bank v Jaf- fray, 36 Neb 218, it was held that an order of a judge allowing an attach- ment on a debt not due was a judicial act, and when made on Sunday or a legal holiday was voi d But the granting of an order of attachment to recover for a debt past due is only a ministerial act, and may be issued by a judge upon a legal holida Y Whipple v Hill, 36 Neb 720 See Troy v Bower, 3 Ark 352; Pickett v Thrus- ton, 7 Ark 400 In Alabama the issuance of an orig- inal attachment by the clerk is a ju- dicial act which it is irregular to per- form on Sunday; but where the at- tachment, although actually issued on Sunday, appeared on its face to have been issued on another day, the court could not, on motion, order the clerk to change the date and then quash the writ Matthews v Ansley, 31 Ala 20 2 Lick v Madden, 25Cal202 But if the party who makes the first de- mand is not on hand to receive his writ when completed, the clerk is not bound to delay the issuing of other writs against the same part Y Lick v Madden, 36Cal208 3 Insufficient writ In West Vir- ginia a paper which does not run in the name of the state, is not directed to the sheriff of the county where the property lies or to any one else, and which does not request the sheriff or any other person to atfach the estate of the debtor or perform any other act in the premises, is not sufficient as a writ of Attachment Sims v Charles- ton Ban K 3 W Va 415 Omission of Na Me Attachments, al- though not directed by name to special bailiffs of the county court, returnable to the superior court, are not insuf- ficient when served by such bailiff S Wade v Stout, 36 Ga 95 Writ Misdirecte d A levy made by a constable under a writ directed to sheriffs and constables, when it should have been directed to the latter only, was not voi d Buchanan v Sterling, 63 Ga 227 Likewise where the writ should have been directed to all and singular the constables of the state, but was directed to all and singular the sheriffs and bailiffs, and the levy was made by a constabl e Warren z/ Pur- tell, 63 Ga 428 But see Thomas v Lavender, 15 Ga 267 A writ directed " to any lawful sheriff of said county" instead of "to any sheriff of the state of Alabama," as required by law, is defective; but the defect becomes im- portant only when it is desired to levy the attachment in another county than that in which it is issue d Blair v Miller, 42 Ala 308 See Bruner v Kinsel, 42 Ala 493 Issued to Sheriff of Another Count Y Where a statute authorizes the clerk to issue a writ "to the sheriff of his county," he cannot issue a writ to the sheriff of another county, and a service d JURISDICTION AND NUMBER OF WRIT S In order to give jurisdiction the action must be brought where the defendant or one of the defendants resides or may be found, or where he has property; 1 and a writ of attachment issued from the wrong county will be voi d 2 But jurisdiction over a defendant having once been properly obtained, writs may issue against him to other counties where he has property, or against codefendants in the counties of their residence or where they have propert Y 3 upon the defendant under such a war- rant would give the court no jurisdic- tion of the perso N Smith v Block, 7 Ark 358 Unjustified Appointment of Special Of- ficeRA clerk was not justified in ap- pointing a special officer to serve process of attachment, upon the appli- cation of a party, which did not show that the court was not in session in the county or that the judge was absent therefrom, nor that the sheriff and his deputies were interested in the pro- ceeding or otherwise disqualified to act, or were absent from the county, but which only showed that the party had sought for them with great dili- gence, but in vain, and that it was important the papers should be served at onc e Dolan v Topping, 51 Ka N 321 Character of Propert Y The statute of Michigan requiring the writ of at- tachment to be issued in the county of residence of one of the parties if the debtor has property therein is juris- dictional, and it is no excuse for fail- ure to comply with the statute that the property situated in the defendant's county consisted of an equity of re- demption, where there was some per- sonal property also, and that the county in which the writ issued ad- joined the county in which it should properly have been issue d Schloss v Joslyn, 61 Mich 267 Federal Court District S Where, in a state containing more than one federal court district, suit is brought against defendants in a district in which neither resides, an attachment issued from that district to the one in which their property is situated is invali d Seidenbach v Hallowell, 5 Dil L (U S) 382 Jurisdiction cannot be Acquired by issuing two writs, one of which is to a county other than that in which the process is returnable, though there be attachable property in such count Y Hinman v Rushmore, 27 111 509 And see Fuller v Langford, 31 111 248; House -v Hamilton, 43 111 185 Against an Absconding DebtoRIn Virginia an attachment against an absconding debtor may not be issued by a justice of a county from or through which it is not alleged the de- fendant is removing, nor to which it is alleged he abscond S Barnett v Darnielle, 3 Call ( Va) 413 In Kentucky such an attachment must issue from a justice of the county where the defendant was last commo- rant; but when so issued such fact need not be set forth in the attach- ment. Plumpton v Cook, 2 A K Marsh (Ky) 450 2 Robertson v Roberts, i A K Marsh (Ky) 247, citing Lanier v Grant, Har d (Ky) 101, not e Change of Venu e And it will be dis- solved on motion of the defendant, who had appeared, in the court to which it has been transferred on his motio N Wasson v Millsap, 70 Iowa 348 3 Carter v Arbuthnot, 62 Mo 582; Cross v Haldeman, 15 Ark 200; Read v Kirkwood, 19 Ark 332 See Mc- Meekin v Johnson, 2 Dana (Ky) 459 Duplicate Writ S Section 378, art. 16, Rev Code of Mississippi does not require that duplicate writs issued to other counties than the original county shall be indorsed as duplicates to identify the actio N Saunders v Columbus L, etc, In S Co, 43 Mis S Where an Attachment against a Non- resident is levied in one county, the court has jurisdiction to issue a writ against other property in another county; and in such case the fact that the fund in the former county is con- sumed by prior liens and does not pay the plaintiff anything, does not destroy the jurisdiction or lien of the levy on the property in the other count Y Platt, etc, Refining Co v Smith, 21 Month L Bul L (Ohio) 122 Successive Writ S And, in general, successive writs may issue in the same county or to different counties until a sufficient amount of property has been attached without the filing of a new bond or affidavit.

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161, providing that "several writs Post Date: Sat, 2 Aug 2008 7:36:05 +0000
1 v EXECUTION OF THE WKIT. (See also article EXECUTION S) 1 In Genera L In executing the writ of attachment the officer should act strictly in conformity to the statute granting the rem- edy, for if he acts otherwise no lien is created on the property by the lev Y 8 Attachment against Codefendant in An- other Count Y Where two joint makers of a promissory note, residing in differ- ent counties, were sued before the note was due in the county in which one of them resided, but not in the county in which the other resided, and a sum- mons was served upon the defendant residing in the county in which the action was commenced, and a sum- mons and an order of attachment were issued to the other county, and were there served to the defendant residing in that county, and his prop- erty there situated was attached, and no order of attachment was issued and no ground for an attachment ex- isted against the defendant residing in the county in which the action was commenced, it was held that the action was not rightfully brought in the county in which it was brought, and that the defendant in the other county might for that reason have the attach- ment dissolve d Rullman v Hulse, 32 Ka N 598; Rullman v Hulse, 33 Ka N 674 1 Hamill v Phenicie, 9 Iowa 525; Elliott v Stevens, 10 Iowa 418 Texa S Under Sayles Civ Stat,art. 161, providing that "several writs of attachment may, at the option of the plaintiff, be issued at the same time, or in succession, and sent to different counties until sufficient property shall be attached to satisfy the writ," a sec- ond writ may issue two months after the filing of the petition and affidavit without renewing the M Branshaw v Tinsley, 4 Tex Civ App 131 West VirginiaUnder 2, C 106 of the code, providing that more than one order of attachment may issue upon the same affidavit and bond, although one attachment may have been im- properly levied and therefore must be quashed, a second order of attachment upon the same affidavit and bond, properly issued against the same property, will constitute a valid lien upon it.

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* 5 By Whom Execute d Post Date: Sat, 2 Aug 2008 7:18:55 +0000
Ballard v Great Western Mi N, etc, Co ( W Va, 1894), 19 S E Rep 510 In Illinois an alias attachment writ is unauthorized, and no waiver can make it goo d Dennison v Blumenthal, 37 111 App 385 2 Whitaker v Jenckes, 9 RI 391; Grace v Evans, 3 Be N (U S) 479; Commercial Nat Bank v Farmers', etc, Nat Bank, 82 Iowa 192; Gardner v Hust, 2 Rich ( S Car) 601; Bucking- ham v Osborne, 44 Con N 133; Fair- banks v Bennett, 52 Mich 61; Culver v Rumsey, 7 111 App 422; Richmond v Brookings, 48 Fed Rep 241; Drake on Attachment, 194 Presumption in Favor of Valid Lev Y Unless something to the contrary appears, the levy will be presumed to have been legally execute d Head v Daniels, 38 Ka N 2; Wilkins v Tourtellott, 42 Ka N 176; Lewis v Quinker, 2 Mete (Ky) 284; Anderson v Sutton, 2 Duv (Ky) 485; Thomas v Mahone, 9 Bush (Ky)ng; Horton v Monroe, 98 Mich 195; Gates v Tusten, 89 Mo 13 When Appearance not a WaiveRAn appearance in a motion to quash an attachment because of irregular exe- cution of process is not an appearance in the action whereby alleged defects are waive d Petty v Frick Co ( Va, 1890), 10 S E Rep 886 Levy should Conform to a Seizure under Executio N The levy of the attach- ment should conform as nearly as pos- sible to the seizure of the same spe- cies of property under an executio N Union Nat Bank z/ Byram, 131 111 92 There must be some act of the offi- cer serving the writ which, in legal contemplation, is equivalent to the actual possession and custody of the property, Gates v Bushnell, 9 Con N 535; a change of possession or some- thing equivalent to a claim of domin- 2 Diligence Necessary in the Lev Y It is the duty of the officer, after the writ has been placed in his hands for execution, to com- plete its execution with all reasonable diligence and dispatc H 1 As to the duty and liability of officers in making levies, see A M Eng Ency C Law, tit S ATTACHMENT ; EXECUTIO N 3 Order of Levy Priority of Writ S Writs in an officer's hand are entitled to priority of service according to the order in which they were delivered to him for that purpose ; a but that the sheriff levied first those attachments which came into his hands first will be presumed by the cpurt where nothing to the contrary appear S 3 ion, coupled with the power to exercise it. Mahon v Kennedy, 87 Wi S 50; Crawford v Newell, 23 Iowa 453; Mc- Donald v Moore, 65 Iowa 171 And when a levy is being asserted, not against the rights of the defendant in the writ, but against third parties, greater strictness in the levy is re- quired than if the rights of the de- fendant alone were concerne d Rus- sell v Major, 29 Mo App 167 Fraudulent and Illegal Attachment S Attachment levies secured by fraud or violence are voi d Pomroy v Parmlee, 9 Iowa 140; Powell v Mc- Kee, 4 La An N 108; Paradise v Farmers', etc, Bank, 5 La An N 710; Wingate v Wheat, 6 La An N 238; Myers v Myers, 8 La An N 369; Gil- bert v Hollinger, 14 La An N 445; Timmons v Garrison, 4 Humph (Tenn) 148; Nason v Esten, 2 RI 337; Metcalf v Clark, 41 Barb ( N Y) 45; Corning v Dreyfus, 20 Fed Rep 426; Deyo v Jennison, 10 Allen (Mas S) 410: Gile -v Devens, n Cus H (Mas S) 59; Chubbuck v Cleveland, 37 Min N 466 But an officer may use the force necessary to the performance of his duty under the la W Haggerty v WilbeR16 John S ( N Y)287; Platt v Brown, 16 Pic K (Mas S) 553; Fullerton v Mack, 2 Ai K ( Vt) 415; Burton v Wilkinson, 18 Vt 186; Perry v Carr, 42 Vt 50; Messner v Lewis, 20 Tex 221; Solinsky v Lincoln Sav Bank, 85 Tenn 368 1 Wheaton v Neville, 19Cal41; Kennedy v Brent, 6 Cranch (U S) 187 Thus, it has been held that a consta- ble should, where necessary to com- plete the service, leave a copy of the writ in another tow N Tomlinscn v Collins, 20 Con N 377 Only Reasonable Diligence Necessar Y In the absence of any instructions an officer is bound only to act reasonably, and what is reasonable depends upon the particular facts of the case, whether the writ be for fraud, etc Whitney v Butterfield, 13Cal335 If the officer has no reasonable ground for apprehending that danger of loss may result from delay, he generally has a right to serve the process at any time within the statutory period; but if he is not only employed to serve the process, but is also agent to nego- tiate, settle, compromise, or obtain payment of the claim, the time spent in such personal agency is not to be regarded as time spent in official busi- ness, in ascertaining whether there has been unnecessary delay in serving other and previous writ S Tucker v Bradley, 15 Con N 50 Plaintiffs Instruction S Though, in the absence of specific instructions from the plaintiff, the officer need only use reasonable diligence in the execu- tion of the writ, if the plaintiff directs the officer to make immediate service of it, the latter is bound to do so, Tucker S Bradley, 15 Con N 50; as he also is where the plaintiff directs him to serve the writ in a particular man- ner, Ranlett v Blodgett, 17 N H 298 Thus, on a writ of attachment against two joint debtors, the creditor has a right to direct an attachment of the property of both or of eitheRMarion v Faxon, 20 Con N 495 But if the officer, by the direction of the plaintiff, levy on and remove the goods of a stranger to the suit, both the officer and the plaintiff will be liable in troveRCalkins v Lockwood, 17 Con N 176 2 Tucker v Bradley, 15 Con N 50; Moore v Fitz, 15 Ind 43; Callahan v Hallowell, 2 Bay ( S Car) 8 See also article EXECUTION S 3 Phelps v Ratcliffe,3 Bush (Ky) 336 In Whitney v Butterfield, 13Cal 4 Duration of Authority to Lev Y The authority of the officer to whom the writ of attachment has been delivered to levy con- tinues from his actual receipt of the writ 1 until the return day, or until he has actually returned it.* 5 By Whom Execute d The writ must be executed by the ex- ecutive officer of the court, or of some court of similar jurisdiction in another county or district, to whom it is directed, and whose duty it is to obey the mandate contained in the proces S 3 335, where one writ was placed in the sheriff's hands on Sunday and anoth- er against the same defendant was placed in the hands of a deputy early Monday morning, without the knowl- edge of the sheriff, and the first levy was made under the last writ at one o'clock Monday morning, the sheriff was held not guilty of negligence in executing the first writ, in the absence of any special directions to the con- trar Y 1 Wales v Clark, 43 Con N 186 Official Possession Necessar Y The sheriff must have official possession or control of the writ to authorize him to levy thereundeRTaylor v Evans (Tex Civ App, 1894), 29 S W Rep 172 2 Westphal v Sherwood, 69 Iowa 364; Courtney v Carr, 6 Iowa 238; Will v Whitney, 15 Ind 194; Drake on Attachment, 187 A Indorsement of Levy after Eeturn Da Y An indorsement of a levy after the return day of the writ, as shown by its face, is invalid, and no lien is created thereb Y Peters v Conwa Y 4 Bush (Ky) 570; Dame v Fales, 3 N H 70 But it was held error to dissolve an attachment because, while the summons was dated the same day the attachmentwas granted andlevied, the sheriff's indorsement on the sum- mons of the day of service was one day laTer Cureton v Dargan, 12 S CaR122 Levy after Return Da Y A levy of an attachment after the return day of the writ creates no lie N Nance v Barber (Tex Civ App, 1894), 26 S W Rep 151; Osborn v Cloud, 23 Iowa 104 But the failure of the sheriff to return into court the special precept on which an attachment was issued until after the return day, and the removal of the cause to the federal court, are not suffi- cient cause for the dissolution of the attachment.

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80; Garnet v Wimp, 3B Post Date: Sat, 2 Aug 2008 7:06:16 +0000
Nims v Spurr, 138 Mas S 209 3 Sadler v Tatti, 17 Nev 429; Weingardt v Billings, 51 N J L 354- Thus in Peebles v Weir, 60 Ala 413, the court held that an attachment issued by a justice of the peace, re- turnable to the Circuit Court, must be levied by the sheriff, a levy by a con- stable being voi d And see Martin A Dollar, 32 Ala 422; Brinsfield v Aus- tin, 39 Ala 227 But in Solomon v Ross, 49 Ala 198, it was held that a special constable appointed by a jus- tice of the peace might execute an at- tachment returnable before the jus- tic e And see Drewry v Leinkauff, 94 Ala 486; and McMeekin v Johnson, 2 Dana (Ky) 459, where it was held that a constable might execute an at- tachment, but that having done so, he must deliver the process and property to the sheriff, who must proceed with it as though he had levied it himself And it has been held that a deputy sheriff might empower a stranger to levy an attachment provided that afterwards, by his return, he adopted the act and made the levy his own without affecting the validity of the lev Y Clarke v Gary, n Ala 98; Per- kins v Reed, 14 Ala 536 Again, where leaving the copies of the writ and return with the town clerk con- stituted an attachment of real estate, it was held that the copies need not be left by the sheriff himself, but might be left by his Agent Pemigewasset Bank v Burnham, 5 N H 275 Special Deput Y A person specially appointed to serve a writ of attach- ment has all the powers of a sheriff in the premises, but must show his au- thority to act, if questione d Burton v Wilkinson, 18 Vt 186; Morrel v Gardner, 20 N J L 673 In Alabama, 2956 of the code, au- thorizing an attachment in certain cases by a constable, refers only to a regular constable, not to a special deputy, and a levy by the latter in 6 Justification of OfficeRIf the writ be in legal form and issued by an official having legal authority to issue it, it will justify the officer in attaching the defendant's property, whether the preliminary steps for obtaining the writ have been correctly taken or not. 1 See, for a full treatment of this subject, A M Eng Ency C Law, tit S ATTACHMENT and EXECUTIO N 7 Attachment of Real Estat e The requisites of a valid levy upon real estate are in most cases fixed by statut e The most common method is to leave with the occupant of the property, or, if there be no occupant, to post in a conspicuous place on the property attached, a copy of the writ, and to file a certificate of attachment with the proper officeR2 such a case is voi d Carter v Palmer (Ala, 1890), 7 So Rep 531 Officer Legally Authorize d A writ of attachment served by an officer not legally authorized to serve it is voi d Weingardt v Billings, 51 N J L 354; Carroll County Bank v Goodall, 41 N H S I Thus an attachment levy made by a sheriff outside of his county, or secured by fraud or vio5ence, is void, and may be dissolved by motio N Pomroy v Parmlee, 9 Iowa 140 Subsequent Judgment Creditors may not object that the attachment was ex- ecuted by an unauthorized officer, where the attaching creditor, the debtor, and his assignee have all waived the irregularit Y Walter -v Bickham, 122 U S 320 1 Alabama Kirksey -v Dubose, 19 Ala 43 California Babe v Coyne, 53Cal261; Mamlock v White, 20Cal598; Walker v Woods, 15Cal66 Idaho Roth v Duwal Li Idaho 149 Illinoi S Booth v Rees, 26 111 45 Iowa State v Foster, 10 Iowa 435 KentucKy Banta v Reynolds, 3B Mo N (Ky). 80; Garnet v Wimp, 3B Mo N (Ky) 360; Owens v Starr, 2 Litt (Ky) 230; Lovier v Gilpin, 6 Dana (Ky) 321 Maine Lashus v Matthews, 75 Me 446 Nebraska Morgan v Larsh, i Neb 361 New Hampshire Ela v Shepard, 32 N H 277 New York, Cross v Phelps, 16 Barb ( N Y) 502; Fulton v Heaton, I Barb ( N Y) 552 Tennessee Stevenson v McLean, 5 Humph (Tenn) 332; Reams v Mc- Nail, 9 Humph (Tenn) 542; Shaw v Holmes, 4 Heis K (Tenn) 692 Texa S Rice v Miller, 70 Tex 613; Mayer v Duke, 72 Tex 445 Wisconsi N Bogert v Phelps, 14 Wi S 88 United State S Livingston v Smith, 5 Pet (U S) 90; Matthews v Dens- more, 109 U S 216 No Jurisdictio N But where the affi- davit is so defective that the court ac- quires no jurisdiction to grant an at- tachment, and the defect appears upon the face of th e process, the officer is not protecte d Castellanos v Jones, The Property Levied upon must be that of the Defendant, or the officer will be a trespasser and liable therefoRWoodbury v Long, 8 Pic K (Mas S) 543; Ford v Dyer, 26 Mis S 243; Meade v Smith, 16 Con N 346; Cald- well v Arnold, 8 Min N 265; Sangster v Co M, 17 Gratt ( Va) 124; Bodega v Perkerson, 60 Ga 516; Lewis v Birdsey, 19 Oregon 164 But the fact that the defendant is not the owner of the property at- tached cannot be pleaded in abate- ment of the suit.

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And see Isham v Downer Post Date: Sat, 2 Aug 2008 6:47:21 +0000
King v Bucks, n Ala 217; Sims v Jacobson, 51 Ala 186 Effect of Eatification by Plaintiff If the plaintiff directs or ratines such levy, he too will be liable, Marsh v Backus, 16 Barb ( N Y)483; Corner S Mackintosh, 48 Md 374; Meyer v Gage, 65 Iowa 606; Perrin v Claflin, II Mo 13; Taylor v Ryan, 15 Neb 573; Oestrich v Gilbert, 9 Hun ( N Y) 242; Calkins v Lockwood, 17 Con N 176; but not otherwise, Butler v Borders, 6 Blackf (Ind) 160; Heidenheimer v Sides, 67 Tex 32 2 Alabama Code 1886, 2945 Arizona Rev Stat1887, tit 4, paR Not Necessary to Enter upon the Lan d provision to the contrary, it is, as Where There is an Occupant. A levy of an attachment upon land by post- ing a copy of the writ is insufficient as against third parties, the statute pro- viding that " the officer shall leave w' f h the occupant thereof, or, if there -In the absence of any statutory has been broadly stated, gener- be no occupant, in a conspicuous place thereon, a copy of the orde R" Shoe- maker v Harvey ( Neb, 1894), 61 N W Rep 109 And see Schwartz v Cowell, 71Cal306 Conspicuous Plac e The side of a house opposite a vacant lot and near a street corner has been held a " con- spicuous place," two witnesses testify- ing that the notice could be easily and plainly see N Davis v Baker, 88Cal106 Separate and Distinct Facts cannot be attached by posting a copy of the writ upon one of them onl Y Hall v Ste- venson, 19 Oregon 153 Illegible Certificate MisnomeRA certificate by an officer to the register of deeds of an attachment of the real estate of Augustu Moulton (the word "Augustu" being so written as to make it difficult to determine whether it was Augusta or Augustu) is not a sufficient compliance with Rev StatMaine, C 81, g 56, to create a valid lien upon the real estate of Augustus Moulton, where the register is thereby misled, and the only attachment ap- pearing of record is of the real estate of Augusta Moulto N The statute re- ferred to requires "the names of the parties " to appear in the certificat e Shaw v O'Brien, 69 Me 501 Right to Levy on Keal Estat e In the absence of any statutory provision to the contrary, real estate may be attached as well as personalty ', Isham v Downer, 8 Con N 282 ; but an officer is not bound to attach real estate unless so directed by the plaintiff, Palmer v Gallup, 16 Con N 558 And in Tucker v Byers, 46 Mis S 549, it was held that an officer should not levy an attachment on land after a levy on personalty sufficient to pay the Debt In Weathers v Mudd, 12B Mo N (Ky) 114, the court held that a statute directing a certain class of property to be first levied upon was simply direct- ory to the officer, and would not ren- der invalid a levy made in contraven- tion of it. And see Isham v Downer, 8 Con N 282 In Arkansas, Indiana, and Tennessee the defendant's personal property should first be taken under an attach- ment; if enough thereof is not found, then his real propert Y Ark Di g 1874, g40i; Ind Rev Stat1888, g 923; ally only necessary for the officer to make the proper return upon the writ that he has attached the property, without his going upon the land or even going to see it.

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