149 P. 494 | Mont. | 1915
delivered the opinion of the court.'
On March 2, 1914, this action was commenced in the district court of Sheridan county to recover a balance alleged to be due for goods, wares and merchandise sold and delivered by the plaintiff to the defendant. On the same day a summons and writ of attachment were issued, and thereafter certain property belonging to the defendant was seized by virtue of the attachment. On March 28 an alias summons was issued. On May 8 the defendant appeared by general. demurrer, and on May 16 moved the court to discharge the attachment on the ground that it had been issued prior to the issuance of a valid summons. This motion was sustained and from the order discharging the attachment plaintiff appealed.
Attachment is classified by our Codes as a provisional
The so-called alias summons was not such in fact. (Rev. Codes, sec. 6516.) It was the first valid summons issued in the
Neither did the general appearance of the defendant militate against his right to move to have the attachment discharged. Under the statute in force in the territory at the time of the decision in Vaughn v. Dawes, 7 Mont. 360, 17 Pac. 114, a motion to discharge an attachment had to be made before the time for answering expired. (See. 200, First Div., Comp. Stats. 1887.) Under our present Code (sec. 6681) the application may be made at any time either before or after the release of the attached property, or before any attachment shall have been actually
The order of the district court is affirmed.
Affirmed.