Laws

In Murdough v, McPherrin, 49 Post Date: Sat, 2 Aug 2008 11:46:42 +0000
I, 5, of the Constitu- tion of West Virginia, prescribing that all writs must issue in the name of the people of the stat e Gutman v Vir- ginia Iron Co, 5 W Va 22 See King v Board, 7 W Va 701; Sims v Charleston Bank, 3 W Va 415 2 Mistake in Dat e But the writ is not void as against subsequent attach- ing creditors on account of a mistake in the dat e This may be amende d Shakman v Sommermeyer (Wi S, 1894), 61 N W Rep 309 Where the date of the attachment as stated in the officer's return was ob- scure, it was held to be aided by the date of the return itself, and was not determined to be subsequent to the latTer Milieu v Blake, 81 Me 531 Omission of Dat e Where the fiat of the chancellor who issued an attach- ment showed when the writ was granted and that it had been issued, and it showed on its face when it was returnable, and the indorsement of the sheriff showed the day it was re- ceived and the date of the levy, and no special question arose upon the date of issuance, the writ was not in- valid because it did not contain such date of issuanc e Lyle v Longley, 6 Bart. (Tenn) 286 3 An order of attachment not show- ing that it was issued by a justice of the peace and not containing those charges which alone could have jus- tified its issue, should be set asid e McLorty v Davis, Sneed (Ky) 57 In Minnesota it is not necessary that Signature and Sea L It must be signed and sealed by the officeR1 If not attested by him the writ will generally be voi d 2 it should appear upon the warrant what officer allowed it to issu e Shaub- hut v Hilton, 7 Min N 506 1 In Tennessee an attachment issued by a justice of the peace must be un- der his sea L Walker v Wynne, 3 Yerg (Tenn)62; M'Culloch v Foster, 4 Yerg (Tenn) 162 Omission of Seal an Irregularity Onl Y The failure of the clerk to attach his seal to the writ is an irregularity amendable after motion to quash therefoRJump v McClurg, 35 Mo 193 The failure of the county judge to attach the seal of his court to an order for attachment granted by him to be issued for the District Court of the same county did not render the order absolutely void, but was a mere irregularity which could be taken ad- vantage of by the defendant only in the proper mode, and was not open to third parties in a collateral proceedin g Winchell v McKinzie, 35 Neb 813 Waiver of Defe Ct The defect in the writ of the omission of the seal of the court is waived by the execution of a delivery bon d New Haven Lumber Co v Raymond, 76 Iowa 225 In Illinois, Iowa, and Minnesota if not sealed and the defect is not waived the writ is voi d Williams v Van Metre, 19 111 293; Foss v Isett, 4 Greene (Iowa) 76; Shaffer v Sundwall, 33 Iowa 579; Wheaton v Thompson, 20 Min N 196; O'Farrell v Heard, 22 Min N 189 Private Seal Onl Y A writ of attach- ment was not insufficient where the clerk sealed it with only an ordinary private seal, stating that no official seal had yet been secure d Wehrman v Conklin, 155 U S 314 Seal of Wrong Court. In Murdough v, McPherrin, 49 Iowa 479, it was held that a writ of attachment issued under the seal of one court while the action is pending in another may be amende d In Wisconsin a writ of attachment defective on account of the omission of the seal of the court out of which the attachment is issued is amendable; and where an attachment writ issued out of the Circuit Court of Wisconsin was sealed, by the misprision of the clerk, with the seal of the Superior Court, he being clerk of both courts, and the suit was afterwards removed to the federal court, it was held by the last court that the writ would be regarded as amended, as it might have been in the state court.

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Sullivan v Presdee, 9 Daly Post Date: Sat, 2 Aug 2008 11:29:27 +0000
Wolf v Cook, 40 Fed Rep 432 The Clerk's Order for the Issuance of the writ need not be under sea L " There is no room for the supposi- tion that the writ of attachment was confounded with the order for the issuing of the writ The writ has the sea L There is no dispute about that, and the order does not need the sea L The writ goes into the sher- iff's hands and the seal authenticates it, but the order does not go from the clerk's hand S The only significance of attaching the seal to it would be to assure himself that he had signed it, and the law does not require such purposeless acts of any office R" Per Manning, J, in Seeligson v Rig- maiden, 37 La An N 722 2 O'Farrell v Heard, 22 Minn 189, citing Wheaton v Thompson, 20 Min N 196 The failure of the clerk to attest the writ is fatal if availed of in due time by a motion to quas H Smith v Hackley, 44 Mo App 614 New York The provisions of the Code Civ Pro of New York that "the warrant must be subscribed by the judge and the plaintiff's attorney, and must briefly recite the ground of the attachment," are mandatory, and a failure to observe them renders the warrant voi d Macdonald v Kiefer- dorf, 22 Civ Pro Rep ( N Y C P I) 105, 18 N Y Supp 763 See Green- leaf v Mumford, 19 Abb Pr ( N Y Supreme Ct) 469, 30 How Pr ( N Y) 30; Wortlington v Burdick, N Y Daily Reg 5 O Ct 1887 In Kissam v Mar- shall, 10 Abb Pr ( N Y Supreme Ct) 424, the omission of the signature of the attorney was held an amendable defe Ct See Genin v Tompkins, 12 Barb ( N Y) 265 When a justice in the city of New York issues an attach- ment from the District Court he should indorse on the warrant his allowance of the attachment, and the clerk should sign it. It is an irregularity for the justice to sign the warrant. Sullivan v Presdee, 9 Daly ( N Y) 552 Defective Attestation Omission of Dat e Pursuant to Rev StatColo55, a defective attestation to a writ of attachment may be amende d Skin- The Summons and the order of attachment may be embodied in the same writ 1 statutory Requisite S Where particular requirements are made by statute the writ must conform to them in form and substance ; a ner v Beshoar, 2 Colo383 Where a writ of attachment shows its date of issuance it is not error for the court to allow a blank date in the clerk's attestation to it to be filled up and to refuse to quash the writ when so amende d Brack v McMahan, 61 Tex I A writ having indorsed upon it the date of its issuance was suffi- cient, although the date was omitted from the test of the cler K Swan v Roberts, 2 Cold W (Tenn) 153 See Lyle v Longley, 6 Baxt (Tenn) 286 And where, by the oversight of the of- ficer in filling up a printed form, the year was omitted from the date of the test, but it appeared from the tran- script when the writ was issued, the defect was amendabl e State v Mo- ran, 43 N J L 49 Form Prescribed by Statut e In Ten- nessee where, under 3465 of the Code, an attachment is issued by the chan- cellor, it is not necessary for him in signing the process to adhere strictly to the form of attestation prescribed by the cod e Lyle v Longley, 6 Baxt (Tenn) 286 Omission of Title of Offic e An at- tachment issued by a justice of the peace and signed by him is not invalid because he does not add his title of office or an abbreviation thereof Hen- derson v Pitman, 20 Ga 735 By Whom Signe d In Texas a writ of attachment might be issued by a judge, and it was not invalid because signed by him instead of by the clerk, notwithstanding the seventh section of the Act of De C 22, 1836, organizing the district courts, and providing that on all process there should be marked by the clerk the day on which it is- sued, this act referring to process in ordinary suits onl Y Sutherland v De Leon, I Tex 250 In New Jersey, it will be intended that the writ was signed and sealed by the clerk, until the contrary appears; and even if it has been sealed and de- livered to the officer by the attorney without the knowledge of the clerk, yet if rightly issued after an affidavit was filed, and it be recognized by the clerk as a writ out of his court, it will not be quashe d Morrel v Buckley, 20 N J L 667 In a Conflict between the Words of the body of the writ over the official signature of the issuing officer, and a mere indorsement on its back wholly unattested, the attested words must prevai L Peters v Conway, 4 Bush (Ky) 568 As to amendments of de- fects in the writ, see also article AMENDMENTS, Vo L I, p 685 1 Rice v Dale, 45 Ark 34, citing Weil v Kittay, 40 Ark 528 See also Gould v Bryan, 3 Bosw ( N Y) 627; Seaver v Fitzgerald, 23Cal86 2 In a New York case, as the result of an examination of the cases, the court (Giegerich, J) decided: " I That where the form of a mandate is prescribed by the code, it must be substantially followed, otherwise the paper will be jurisdictionally defective and voi d (Osborn v McCloskey, 55 Ho W Pr ( N Y Supreme Ct) 345; Worthington v Dorsett (Supreme Ct), 6 N Y St Rep 861; Place v Riley, 98 N Y i; and see Blossom v Estes, 84 N Y 614) 2 But where the sub- stantial rights of the defendant have not been violated, nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment.

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(Douglas v Haberstro, 88 Post Date: Sat, 2 Aug 2008 11:15:32 +0000
(Atlantic, etc, Te L Co v Baltimore, etc, RCo, 46 N Y SupeR Ct 409)3 Where the paper purport- ing to be a mandate recites the neces- sary jurisdictional facts, the same will not be set aside because of erroneous recitals therein, particularly if the de- fect is not pointed out in the notice of motion as a ground of vacating the attachment. (Marietta First Nat Bank v Bushwick Chemical Works, 17 Civ Pro Rep ( N Y Supreme Ct) 229) 4 That sheriffs in an action against them to enforce an alleged liability as bail cannot attack the form of the mandate placed in their hands for en- forcement. (Douglas v Haberstro, 88 N Y 611)" Macdonald v Kiefer- dorf, 22 Civ Pro Rep ( N Y C P I) 105, 18 N Y Supp 763 Omission of Clause of Scire Facia S In Maryland the omission from a writ of attachment by way of execution of the but clerical errors will not, in general, vitiate an otherwise valid writ, 1 and informalities will be waived by appearance and answeR3 b PARTIE S Although subject to be amended, the writ should accurately describe all the parties plaintiff and Defendant 3 clause of scire facias, the insertion of which is required by statute, was a defect sufficient to have authorized the Circuit Court to set aside the at- tachment if the objection had been there made; but, when brought in question in a collateral action, it did not render the attachment void and thereby defeat the title of a pur- chaser of the propert Y Manton v Hoyt, 43 Md 254 ' ' Trustee Process " Form used as writ An attachment writ was not insufficient in form because a blank form of a trustee writ was used, though the name of the trustee was not inserte d Badlam v Tucker, i Pic K (Mas S) 389 And a writ of " trustee process " may be sufficient as a valid attach- ment when no service is made on the trustee named therei N That part of the writ in respect to him may be treated as surplusag e Graves v Se- -verens, 37 Vt 651 Warrant and Writ Minnesota "There is nothing in the distinction between the warrant provided for under the law in force in 1865 and the writ provided for under the law in force in November, 1886, * * * for, if there be any doubt whether the warrant be a writ, there can certainly be none that it is a process, and there- fore required to be executed in the same way and with the same formali- ties as a writ, under Pu b Stat, C 57, ' 12, 13" Per Berry, J, in O'Farrell v Heard, 22 Min N 189 1 Thus where a writ of attach- ment in reciting the affidavit substi- tuted the word "them" for the word "creditors" and misstated the year in the date of its return, it was held that it was proper to look to the whole record and, if the variance upon in- spection appeared to be clerical errors, to disregard it entirel Y McClanahan v Brack, 46 Mis S 246 See Baines v Ullmann, 71 Tex 529 2 Phelps v Reeder, 39 111 172 All objections to the writ will be waived by moving to set aside the attachment on other grounds and failing to make the objections before giving bond for the release of the propert Y Wolf v Cook, 40 Fed Rep 432, citing Dierolf v Winterfield, 24 Wi S 143; Pacific Xnt.

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Cain v Rockwell, 132 Mas Post Date: Sat, 2 Aug 2008 11:04:09 +0000
Bank v Mixter, 124 U S 728 See article APPEARANCES, Vo L I I, p 608 3 MisnomeRThe amendment of the writ, by striking out the middle letter in the name of the defendant, will not dissolve an attachment of per- sonal property in a suit between the original parties, where no rights of third persons interven e Wentworth v Sawyer, 76 Me 434 Nor will the in- sertion of the words "otherwise called W M J Robinson," in a writ against W M Robinson vacate an attachment of personal property so as to give a mortgage of the property to a third person, made after the attachment and before the amendment, priority over the attachment of which the mort- gagee was ignorant. Diettrich v Wolffsohn, 136 Mas S 335 And an amendment of a writ by changing the name of the plaintiff from " Mary " to " Ann " has been held not to vacate an attachment of funds in the hands of a person summoned as trustee so as to give an assignment made prior to the amendment preference over the at- tachment. Cain v Rockwell, 132 Mas S 193 Fictitious Na Me Where the prop- erty of a person is attached under a writ issued against him in a fictitious Christian name, the attacnfnent is void and the writ is no protection to the officeRPatrick v Solinger, 9 Daly ( N Y) 149, citing McCabe v Doe, 2 E D Smith ( N Y) 64; Gardner v McKraft, N Y Daily Reg, Fe b 23, 1887; Davenport v Doady, 3 Abb Pr ( N Y Supreme Ct) 409; Solinger v Patrick, 7 Daly ( N Y) 408 Deceased Perso N An attachment is- sued against a deceased person is voi d Purnell v Frank, 68 Mis S 639 Omission of a Part Y The court may give leave to amend a writ of attach- ment from which has been omitted the name of one of the plaintiffs in the declaratio N Shaw v Brown, 42 Mis S MisjoindeRBut it has been held fatal to the attachment lien for the court to permit the striking out of the name of one of several codefendant S Peck v Sill, 3 Con N 159 Partner S When sued out by a firm it should name the partners as well as the firm, 2 and when directed against a partnership indi- vidually as well as collectively, both the firm name and the names of the partners must be give N 3 C RECITALS (i) Cause of Action and Grounds of Attachment It is very generally provided by statute that the writ shall briefly recite the grounds of the attachment, or shortly declare the cause of action, but the particular requirements in the several states vary widel Y 4 The writ, however, need never contain all the req- Uncertainty Cured by Other Paper S In Georgia, an attachment being amendable, the affidavit and bond may be looked to in aid of the writ it- self when it is wanting in certainty as to the person against whom it was in- tended the writ should issu e Moore v Brewer ( Ga, 1894), 21 S E Rep 460 1 A writ of garnishment may issue against several defendants, whether they are jointly or severally indebted to the plaintiff, and such a writ will not be held defective upon plea in abatement theret O Curry v Wood- ward, 50 Ala 258 2 Sims v Jacobson, 51 Ala 186, where an affidavit for attachment was made by a partner of a named firm, but did not show who were the other members; and the writ issued in favor of the affiant and two others, not showing that they constituted the firm, although they in fact did, was quashe d Bennett v Zabriski, 2 N Mex 7, 17^.

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Barber v Smith, 41 Mich Post Date: Sat, 2 Aug 2008 10:46:19 +0000
Irregularity Onl Y Where a writ was sued out in a firm name, but a declara- tion was filed setting out in full the names of the members of the firm, and the defendant appeared, the irregular- ity was unimportant. Although it might have been sufficient cause for quashing the writ if not amended, or for reversing an error if there had been a default, it did not render the writ voi d Clayburg v Ford, 3 111 App 542 Christian Names not Give N Where the Christian names of the plaintiffs were not given in the writ, but they were denominated by their last names and as a firm and otherwise identified, the writ was held, on collateral at- tack, not to be absolutely void, but, while the case was still open, capable of amendment by leave of court. Barber v Smith, 41 Mich 138 Omission of a PartneRWhere an ac- tion of attachment was brought in the name of a firm, and the name of one of the partners was omitted in the papers as originally filed, which omission was subsequently cured by amend- ment, the levy was held to be unaf- fected by such omissio N Henderson v Stetter, 31 Ka N 56 3 In a suit brought against a part- nership and the individual members thereof, a writ of attachment against the firm only will not justify the officer in levying on the individual property of one of the partner S Mason v Rice, 66 Iowa 174 An attachment against a firm was not defective on account of the mis- nomer of the baptismal name of one of the partners, where the firm name was correctly give N See Rushton v Rowe, 64 Pa St 63 In Alabama and Indiana, by statute, the writ may issue against a partner- ship in the firm na Me Sims v Jacob- son, 51 Ala 186; Voorhees v Hoag- land, 6 Blackf (Ind) 232 4 In Maryland the attachment must be accompanied by a capias against the defendant and a short note of the plaintiff's cause of action to be set up at the court-house dooRStone v Magruder, 10 Gill J (Md) 383 See Brent v Taylor, 6 Md 70; Campbell v Webb, n Md 481; Spear v Griffin, 23 Md 431 Maine In an action founded upon Rev Stat, C 148, 49, "to entitle the plaintiff to recover, he must allege in his writ and prove that his debtor was possessed of property liable to attach- ment or levy on execution, which was by him fraudulently concealed or transferred to secure the same from creditors, and to prevent the seizure of the same by attachment or levy on execution ; th'at the defendant did knowingly aid and assist in such uisites of a declaratio N 1 Care must be taken not to recite the grounds in the alternative or to recite inconsistent ground S 2 fraudulent concealment and transfer; and that the plaintiff was at the time of such fraudulent concealment and transfer, and at the time the action was commenced, a creditor of such debto R" Herrick v Osborne, 39 Me 231 New York Under section 641 of the Code Civ Pro, requiring a warrant of attachment to "briefly recite the grounds of the attachment," a recital "that the said defendant has ab- sconded from the county of Orleans, the place of his residence, with intent to defraud his creditors," was suffi- cient, where the affidavit alleged that the defendant had departed from the state where he resided with intent to defraud his creditors, and added some facts and circumstances, though slen- der, sufficient to support that conclu- sio N Van Camp v Searle, 79 Hun ( N Y) 134, 29 N Y Supp 757 The recital in a warrant, as a ground of attachment, merely that "defend- ant has departed from the city and state of New York" was held insuffi- cient.

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Saco z Hopkinton, 29 Post Date: Sat, 2 Aug 2008 10:30:27 +0000
Macdonald v Kieferdorf, 22 Civ Pro Rep ( N Y C P I) 105, 18 N Y Supp 763 In Tennessee all that is essentially necessary for the writ of attachment ancillary to an action ex delicto to re- cite is, that a suit has been commenced by the plaintiff against the defendant, the nature thereof, the tribunal in which it is pending, the amount of damages laid in the action, and that the cause of action stated is juSt Thompson -v Carper, n Humph (Tenn) 542 See Morris v Davis, 4 Sneed (Tenn) 452; Smith v Foster, 3 Cold W (Tenn) 139; Woodfolk v Whit- worth, 5 Cold W (Tenn) 561; Wood- fold v Wilkins, M S Nashville 1872- 73; Walker v Cottrell, 6 Baxt (Tenn) In Iowa the cause of action or its nature need not be stated in the writ Wadsworth v Cheeney, 13 Iowa 576; Pitkins v Boyd, 4 Greene (Iowa) 255; Westphal v Sherwood, 69 Iowa 364 In Alabama, where the writ in recit- ing the grounds did not follow the affidavit, the attachment was quashe d Woodley v Shirley, Minor (Ala) 14 But in Mississippi the contrary ruling was made where it appeared from the whole proceedings that the variance was only a clerical error, or immate- ria L Lovelady v Harkins, 6 Smed M (Mis S) 412; Clanton v Laird, 12 Smed M (Mis S) 568; McClanahan v Brack, 46 Mis S 246 1 Thus, it need not make profert of the note on which it is founde d Mon- roe v Castleman, 3 A K Marsh (Ky) 399 But in Kentucky it is in- dispensably necessary that the attach- ment state the nature of the demand so specially that a recovery thereon would effectually bar a subsequent demand for the same caus e Hickman v Gest, Sneed (Ky) 297 Massachusett S Under Pu b Stat, C 167, 7, 8, " in order that a valid at- tachment may be made, the writ need not contain a declaration, nor any de- scription of the cause of action on which it is intended to declare, other than the name of the form thereof, and the declaration maybe filed in the clerk's office on or before the day on which the writ is returnable, unless an arrest of the person is mad e" Bin- ney v Globe Nat Bank, 150 Mas S 574 2 A recital that the defendant " has assigned and disposed of, or is about to assign and dispose of, her property with intent to defraud her creditors," was held insufficient because in the al- ternativ e Cronin v Crooks, 143 N Y 352, affirming 76 Hun ( N Y) 120 But a recital in a warrant that "the said defendants have assigned, dis- posed of, or secreted their property with intent to defraud their creditors " is not insufficient because in the alter- native, but is a recital of one class only of the grounds set forth in the statut e Smith v Wilson, 76 Hun ( N Y) 565 See Rothschild v Mooney (Supreme Ct), 36 N Y St Rep 565; Dintruff v Tuthill, 62 Hun ( N Y) 591 See Disjunctive Statements, I I, 7, C (3), supr A Language of Statut e In Garson v Brumberg, 75 Hun ( N Y) 336, a war- rant reciting that the debtor " has re- moved or is about to remove property from the state with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, prop- erty with the like intent," was held insufficient because in the alternative, although following the language of the statut e Attachment of Seal Estat e Particularly specific recitals are fre- quently required to be inserted in writs for the attachment of real estat e 1 (2) The Amount The amount for which the attachment is issued must be stated definitely in the writ, and a statement therein of a larger amount than is claimed in the affidavit and complaint will render the writ void ; but the statement of a smaller amount will not have this effect, 2 nor will slight discrepancies Inconsistent Ground S An attachment granted on the grounds, as recited in the warrant, that the defendants "have assigned, disposed of, and secreted, and are about to assign, dis- pose of, and secrete, their property with intent to defraud their creditors," was vacated because the grounds were inconsistent. American Horse Ex- change v Strauss, 75 Hun ( N Y) 192 1 Maine What are Sufficient Speci- fications of the Clai M The specifica- tions in a writ of attachment upon real estate that " the claims intended to be proved under the foregoing money counts are money obtained of plain- tiffs by defendant on notes specifically described," followed by a description of the notes showing them to be not then due, did not on thtir face show that no action could possibly be sus- tained under them, and that the attach- ment did not create a lien against a subsequent purchaseRJordan v Keen, 54 Me 417 "Balance Du e" Construing C 81, 56, Rev Stat1871, which requires the amount of the plaintiff's demand to be set forth in proper counts, or a specification thereof to be annexed, the court (Walton, J) said: " In the construction of this statute the court long ago decided that where a writ contains no other description of the plaintiff's demand than this: ' To bal- ance due on account and interest, 81500,' no valid attachment of real es- tate can be made upon it. Saco z Hopkinton, 29 Me 268 The specifi- cation in the writ against L was this: 'To amount due on account, $70792 Interest, $75,' with an additional al- legation that under the money count the plaintiff would claim to recover the 'balance' due on account.

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Attachment Allowed by Cler K Post Date: Sat, 2 Aug 2008 10:16:15 +0000
These specifications are almost precisely the same as the one held insufficient in the case cited, and are in no respect any more definit e We think they were insufficient under the statut e" Belfast Sav Bank v Kennebec Land, etc, Co, 73 Me 404 An attachment of real estate, issued before the Act of 1838, C 344, went into effect though judgment was not re- covered and levy made till afterwards was not defective because the writ contained a general money count with- out any specification which the statute required should be annexed to the writ French v Lord, 69 Me 537, overruling Poor v Larrabee, 58 Me 543 See Smith v Keen, 26 Me 411 2 Reed v Kentucky Bank, 5 Blackf (Ind) 227; Bowers v London Bank, 3 Utah 417 Mistake of Cler K If an attachment writ is issued by the mistake of the clerk for a greater amount than is claimed in the affidavit, the attachment will be quashe d Ballard v Great Western Mi N, etc, Co ( W Va, 1894), 19 S E Rep 510 Variance Favorable to Defendant A difference between the amount sworn to in the affidavit and the amount named in the order of attachment which is favorable to the defendant cannot be assigned for error by hi M Tessier i. Crowley, 16 Neb 369 Omission of Amount In Atkins v Womeldorf, 53 Iowa 150, a writ from which was omitted the amount claimed by the plaintiff was allowed to be amended by inserting therein the proper su M Defendant's Exemption S The order need not so state the plaintiff's claim that the amount of the defendant's exemptions may appeaRTessier v Englehart, 18 Neb 170 Different Amounts against Several De- fendant S "When the complaint de- mands different amounts from the sev- eral defendants in an action, the writ must conform to the complaint and direct the attachment of so much prop- erty of the respective defendants as will secure the amount alleged to be due from eac H The clerk is not au- either way be fatal to the attachment when attacked in collateral proceeding S 1 (3) Other Recital S Unless required by statute the writ need not recite the making of the affidavit or the giving of the under- taking required by law ; 2 nor need it describe the property which is to be attache d 3 thorized to issue a writ of attachment against the property of any defendant for an amount exceeding the demand which is made against such defendant in the complaint, and if he does, the writ must be discharged as to such de- fendant on his motio N" Kennedy v California Sav Bank, 97Cal93 Amounts not Indefinit e Where by statute the sheriff is required to levy on property in value fifty per cent more than is due, a writ directing the sher- iff to attach to satisfy the amount of $3700, claimed in the petition to be due, with interest, costs, and attor- ney's fee, was not indefinite as to the amount to be attached by the sheriff Toledo Sav Bank v Johnston (Iowa, 1894), 57 N W Rep 622 The addi- tion of the words "or thereabouts" after a statement of the amount in the writ did not render the attachment void on collateral attac K Davis v Baker, 88Cal106 1 Shaubhut v Hilton, 7 Min N 506 Order Fixing Amount In Sherrill v Fay, 14 Iowa 292, it was held that an order by a county judge, fixing the amount of property which may be at- tached in an action not founded on contract, is sufficiently attested by his signature without a certificate of his official character under the seal of his court. Attachment Allowed by Cler K In Arkansas the statute requiring an or- der of the court or judge granting an attachment to specify the amount for which it was allowed does not require the clerk when the attachment is al- lowed by himself to make an order specifying the Amount People's Sav Bank, etc, Co v Batchelder Egg Case Co (District of Arkansas), 51 Fed Rep 130 2 Tessier v Crowley, 16 Neb 369; Hays v Gorby, 3 Iowa 203: Ellsworth v Moore, 5 Iowa 486: Wadsworth v Cheeney, 13 Iowa 576; Westphal v Sherwood, 69 Iowa 364 But to do so is good for M Tessier v Crowley, 16 Neb 369, and see Banta v Reynolds, 3B Mo N (Ky) 80; Garnet -v Wimp, 3B Mo N (Ky) 360; Tanner Engine, etc, Co -v Hall, 22 Fla 391 But see Devall v Taylor, Cheves ( S Car) 5 West VirginiaAn order of attach- ment issued under n, C 151, Code Va 1860, need not recite the making of the affidavit or refer to it, where it appears from the record that a suffi- cient affidavit had been filed when the order was issue d King v Board, 7 W Va 701 In West Virginia an order of foreign attachment against a non- resident debtor, issued under n, C 151 Code Va 1860, need not describe the property mentioned in the affi- davit.

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A recital in a writ Post Date: Sat, 2 Aug 2008 10:05:53 +0000
King v Board, 7 W Va 701 In Nebraska the writ need not de- scribe the property if the same is described in the appraisement at- tached to the writ Grebe v Jones, 15 Neb 312 In Michigan it is not necessary to more particularly describe the prop- erty in a writ of attachment brought under the log-lien law than in re- plevin; and a writ containing the de- scription, "about 200,000 feet of pine and hemlock lumber and also about 300 cords of slabs," was held sufficient. Dillon v Howe, 98 Mich 168 Other Recitals Identifying Cas e In Tennessee a writ of ancillary attach- ment must refer to and describe and identify the suit, in aid of which it issues, so as to show unmistakably upon its face that it forms an adjunct of that particular proceedin g The form prescribed by the code relates to an original attachment onl Y Lewis v Woodfolk, 2 Baxt (Tenn!) 25, citing Woodfolk v Whitworth, 5 Cold W (Tenn) 565 See Peak v Buck, 3 Baxt (Tenn) 71 Order for Issuanc e A writ of attach- ment issued upon a debt not due need not recite the order for its issuanc e Armstrong v Lynch, 29 Neb 87 Recovery of Judgment. A recital in a writ of garnishment upon a judg- ment, issued by the clerk of the court, that the judgment was recovered in d WHEN AND WHERE RETURNABLE Ti Me It is the usual practice, but it is not universally essential, for the writ to contain a direction to the officer who is to levy the attachment to make his return of the service of the writ on or before the first day of the next term ;* but a writ made returnable sooner or later than the first day of the term next succeeding the date of its issuance will in general be voidable onl Y 2 Plac e The writ must usually be made returnable before the court or officer issuing it, but defects in the direction as to the place of its return will not be fata L 3 the court aforesaid and execution had been issued thereon, which was re- turned by the sheriff of the county "no property found," sufficiently showed that a judgment had been re- covered in that court against the de- fendant before judgment was rendered against the garnishe e Curry v Woodward, 44 Ala 305 1 Westphal v Sherwood, 69 Iowa 364; Andrews v Reid, 7 Blackf (Ind) 256; Will v Whitney, 15 Ind 194 See Merrill v Low, i Pinney (Wi S) 221; Chase v Hill, 13 Wi S 222 In Alabama it is not necessary for the writ to contain a direction as to the term to which it is to be returned where it is prescribed by law to which :erm an attachment is returnabl e Blair v Miller, 42 Ala 308 In North Carolina an attachment which specifies no day or place of re- turn is irregular and therefore void- able, but the defect is waived if the defendant appears and gives an under- taking for the redelivery of the prop- ert Y Backalan v Littlefield, 64 N CaR233 2 Writ Made Returnable Too Earl Y A writ of attachment made returnable at a day earlier than is warranted by law is only voidabl e " The sugges- tion of the counsel for the defend- ant in this case, that the validity of the writ of attachment ought not to depend upon the validity of the clause of summons contained in it, is entitled to consideratio N It may seem novel, and the statute makes the clause of summons an essential por- tion of the writ of attachment, but in effect they may be regarded as two separate writs and with separate ob- jects, the one directing the officer to seize property as a security for the creditor, the other directing the officer to advise the debtor of what has been don e Of course the court will not permit the property seized to be sub- iected to the payment of the debt unless the debtor is legally advised of the proceedings; but it is not per- ceived why the invalidity or total nullity of the summons should neces- sarily make the attachment also a nullit Y" Per Napton, J, in Missouri Bank v Matson, 26 Mo 243 Second Return Da Y In Colorado a writ of attachment made returnable to the second return day after its date of issuance is not void, but amendabl e Archibald v Thompson, 2 Colo388 But in Pennsylvania, under the Statute of 1869 requiring all attachments to be made returnable to the first return day after their issue, a writ made returnable to the second return day was quashed on motio N The defect was not waived by the appearance of the defendant to take advantage of it.

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An attachment made returnable Post Date: Sat, 2 Aug 2008 9:47:29 +0000
Williamson v McCormick, 126 Pa St 274, citing Parks v Watts, 112 Pa St 4 And in Georgia an attachment issued under the Act of 1799 more than thirty days before "the next court," which was made returnable nearly twelve months after its date, was void under the very terms of the a Ct Casey v Wiley, 5 Ga 333 See Wanet v Corbet, 13 Ga 441 First Day of Next Term not Determined when Writ was Issue d The fact that the writ was made returnable upon a day which had not at the time of its issuance been fixed upon as the first day of the next term, but which was afterwards established as such, did not render the writ void, though in connection with other defects it might have been a good defense if seasonably interpose d Wehrman v Conklin, 155 U S 314 Year Omitted from Time of Retur N Where a writ was made returnable on a certain day of a certain month, but the year was omitted, it was held that it referred to the then current yeaRNash v Mallory, 17 Mich 232; Vinton v Mead, 17 Mich 388 3 Byrd v Hopkins, 8 Smed M 2 Issuance A WHO MAY ISSU e To be valid the writ must proceed from some officer legally authorized to issue it. Justices of the peace, judges and clerks of courts are the officers usually empowered by statute to issue attachment S 1 But it is very fre- (Mis S) 441; Wharton v Conger, 9 Smed M (Mis S) 510; Blake v Camp, 45 Ga 298 Name of Officer Stated, but Place Omit- te d Under sections 2562 and 2849 Code Ala an attachment was not sub- stantially defective because it did not expressly state that further proceed- ings thereon would be had before the justice issuing the attachment, or be- fore whom they would be had, where it did state the plac e Bruner v Kinsel, 42 Ala 493 Name of County Giren, but Town Omit- te d A writ of attachment issued by a justice in the form required by the statute and requiring the defendant to appear before him in a certain county, but not naming the town, is sufficient to confer jurisdictio N Beseman v WebeR53 Min N 174 Name of Officer Omitte d Where a writ of attachment issued by a justice of the peace in one district, return- able to " a justice's court to be held at" a place named in another district, omits the name of the justice before whom it is to be returned, such omis- sion is waived by the appearance of the parties and the trial of the case before a justice of the peace at the place named in the writ Armitage z/ Rector, 62 Mis S 600 Wrong Court Name d A recital in a writ of attachment issued by the clerk of the District Court under the seal of that court that the petition was filed in the Circuit Court, and ordering the sheriff to make return to the "Circuit Court," when that court had been abolished, did not invalidate the writ, which was amendabl e Rock Island Plow Co v Breese, 83 Iowa Returnable to Clerk instead of Court. An attachment made returnable to the clerk of the Circuit Court instead of to the Circuit Court is not voi d Bourne v Hocker, nB Mo N (Ky)S3 Returnable to Wrong Count Y A clerical mistake in making a writ of attachment issued in L county return- able to the court ofB county, arising from the use of a blank prepared for use inB county, did not render the writ void where all the other papers showed that the writ was issued re- turnable to L county, and no one was misled by the mistake, and defendant appeared in court, and a bond of claim- ant recited that the writ was return- able to L count Y Carter v O'Bryan (Ala, 1895), 16 So Rep 894 1 Justice of the Peac e In Alabama a justice of the peace may issue an attachment returnable before himself without regard to the residence of the defendant or the place in which the cause of action aros e Atkinson v Wiggins, 69 Ala 190 And a notary public who is ex officio a justice of the peace may issue an attachment return- able before himself Griffin v Apple- by, 69 Ala 409; Rice v Watts, 71 Ala 593 Judg e In Maryland, under 24, art.

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In general an officer Post Date: Sat, 2 Aug 2008 9:32:08 +0000
9, of the code, allowing an order of attachment against the property of a defendant twice returned non est, the order of the judge dispenses with the warrant of a justice usually re- quire d Dirickson v Showell (Md, 1894), 28 At L Rep 896, citing Randle v Mellen, 67 Md 189 Nebraska Under section 238 of the code, providing that an attachment on a debt not due "maybe granted by the court in which the action is brought, or by a judge thereof, or by the probate judge of the county," when an order for an attachment in such a case is allowed by the latter and signed by him officially, it will be presumed that the judge of the dis- trict court was absent from the county when the application for the attach- ment was made to the county judge, and that the order for the attachment was duly made by one who was the judge of the count Y Reed v Bagley, 24 Neb 332 ChancelloRSection 3465 of the Code of Tennessee, authorizing the chan- cellor to issue attachments, was not rendered nugatory by 12, art. 6, of the constitution, providing that "all writs and other process shall run in the name of the state of Tennessee, and bear teste and be signed by the respective clerks;" nor has it been repealed by subsequent statute S Lyle v Longley, 6 Baxt (Tenn) 286 quently provided that a clerk of court may issue the writ only upon an order therefor previously made by a judg e 1 When the clerk is authorized, his deputy may act for hi M 2 Officer of Another Court. In general an officer of one court may not issue an attachment returnable to another court.

Autor of the post: Undefined

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