109 Ala. 270 | Ala. | 1895
The appellant, a corporation having its domicil in the State of Washington, on the 23rd day of March, 1894, sued out a writ of attachment against Emma Clement, a resident citizen of the same State, returnable into the city court of Montgomery, which was on the day of its issue by the sheriff levied on certain real'estate, situate in the city of Montgomery, as the property of the defendant; and, with the levy thereon endorsed, was duly returned into the city court. At the return term, an attorney, appearing specially for the defendant, moved the court to discharge che levy of the attachment, upon the sole ground that the real estate levied on was not the property of the defendant, but was the property of one Catharine Drelier. In support of the motion, the defendant introduced in evidence a deed, by which she and her husband, on the 26th day of February, 1894, on a recited consideration of twenty-five hundred dollars, conveyed the real estate to said Catharine. The execution of the deed and its registration, that it recited a consideration of twenty-five hundred dollars, and that the grantee had been from the day of execution in- continuous possession of the real estate, were facts admitted. It was, for the purposes of the motion, further admitted that the grantee had been a resident citizen of the city of Montgomery for twenty-five years, and at the execution of the deed was without knowledge of the indebtedness of the defendant on which the attachment is founded. The indebtedness was evidenced by the records of duly certified personal judgments against the defendant in the superior court of Spokane county, State of Washington, the one for $2,540.31, and the other for $94.47, rendered prior to the conveyance. The city court granted the motion, and rendered judgment discharging the levy and dissolving the attachment, to which the appellant excepted. The appellant moved for judgment by default, and also for judgment by nil dicit, against the defendant, but the motions were overruled, and exceptions reserved. The rendition of judgment discharging the levy and dissolving the attachment, and overruling the motion for judgment, form the matter of the assignments of error.
As the leading process in the commencement of an action at law, an attachment executed by a levy upon the property real or personal of the defendant, or by the summons of a garnishee, a supposed' debtor of the defendant, or custodian of his property or effects, the levy or summons standing in the place of personal service of process, was unknown to common law; it is strictly, purely, of statutory creation. Deriving existence from statute, its scope and effect must be measured by the law of its creation. The purpose and essence of the remedy, as created and regulated by the general statutes, is to establish by judgment a claim or debt against the defendant, and to subject to the satisfaction of the judgment property or effects within the territorial jurisdiction of the court. — Phillips v. Ash, 63 Ala. 419.
If there be irregularity apparent on the face of the writ or defect in the affidavit or the bond which must attend its issue, the statutes contemplate that advantage of the irregularity or defect shall be taken by a plea in abatement, though the court may, in its discretion, entertain a motion to quash,, as- the substitute of á plea. Code, § 2997; 1 Brick. Dig. 157, § § 30-63; 3 Brick. Dig. 55, § § 37-39. But if there be no such irregularity
A traverse of the causes for which the attachment may be issued the statute prohibits, manifesting the legislative intent to free the suit from all merely collateral issues. Code, § 2999. And if such issues arise between the attaching creditor and a stranger claiming personal property on which levy is made, or by reason oí the contest of the answer of the garnishee, or of claims of right or interest in the debt or effects sought’ to be readied by garnishment, and there be not other property attached, or effects garnished, judgment against the defendant in attachment cannot be rendered until these issues are determined. Code, § 3000. Reading these statutory provisions in connection; they define and declare the scope of the issues which may be raised in the attachment suit, when and by whom they may be raised, and when, and the character of, the judgment which may be rendered.
If the levy of an attachment be not fictitious, merely colorable, a fraud on the jurisdiction of the coui't, that the defendant may not, as ground for abating or dissolving the attachment, or discharging or vacating- the levy, traverse the ownership of the property on which the
When it is said that a fictitious, colorable levy is a fraud on the jurisdiction of the court, against which the court has inherent power to protect itself, while the proceedings are in fieri, it is intended that the levy must be feigned, unreal. There must be deceit, a want of good faith, imputable to the plaintiff in the process, or to the officer making the levy, from which the plaintiff claims benefit, or in which he participates, There must be knowledge that the property is not the property of the defendant, and,writh that knowledge, the 'levy must be made with the intent to confer jurisdiction on the
Waiving all consideration of the want of interest of the defendant in such traverse ; that if it be true, in point of fact, that the property belongs to a stranger, it is not his province or duty to protect or preserve it; and that the right of the stranger will not be affected or bound by the judgment, — this case is a striking illustration of the impropriety of such traverse. The levy was on real estate the defendant had conveyed not a month before the levy; after the debt of the plaintiff had been contracted, the conveyance reciting as its consideration the payment of the sum of twenty-five hundred dollars. The validity of this conveyance was of necessity involved in the motion to discharge the levy and dissolve the attachment. The court was invited, summarily, in a personal action, collaterally, in the absence of the party in interest, without the intervention of a jury, to inquire'into and determine the title to land. The principle is elementary that, in personal or transitory actions, the title to land can not be drawn into dispute. The law has appointed the remedies by which adverse titles must be tried. 1 Smith Lead. Cases, 660; Sedgewick & Wait, Trial of Title to Land, § 176; Cooper v. Watson, 73 Ala. 252; Fielder v. Childs, Ib. 567. Suppose the plaintiff had entered into the contestation, and had shown the conveyance was fraudulent as to the creditor of the grantee, it would have been of no avail; would not have advanced the ^remedy, or rendered more efficacious the judgment which may be finally rendered. The grantee is not a party, and can not be made a party for the purpose of trying her title. As to her the judgment would have been res inter alios acta, and her right and title the subject of contestation only when it may be assailed in some of the modes the law appoints.
Attachments are often sued out and levied on personal property of which the defendant has made sale and conveyance, the purpose being to contest the validity of the
There is no room in the present case for any imputation of the want of good faith in the plaintiff in causing the levy to be made on the real estate. An attachment was the only legal remedy by which, if the conveyance was fraudulent, the real estate could be reached. The admission, for the purposes of the motion, that the conveyance recited a consideration of twenty-five hundred dollars, was not an admission that the consideration was real, or adequate, or had been paid. The debt of the plaintiff having been contracted prior to, and existing at the time of, the conveyance, in any contestation of the validity of, the conveyance bj and between the plaintiff and the grantee, the burden of proving that it' was founded on a valuable consideration would rest on the grantee. The recital would be deemed the mere declaration or admission of the grantor, inadmissible as evidence against the plaintiff. 3 Brick. Dig. 520, §§ 173-74. It is obvious the levy was real, made in good faith, in pursuit of property supposed to have been fraudulently conveyed.
Against a non-resident of the State, if he does not
The theory of an attachment, whether it be process against or to subject the property or effects of a resident or non-resident of the State, as the remedy has been administered in this State, is-that it partakes essentially of the nature and character of a proceeding in personam, and not of a proceeding in rem. The seizure of the property of the defendant by a levy, or of his effects by the summons of a garnishee, is as essential as is the service of summons to appear and defend when the suit is strictly and solely in personam. The levy, or the service of garnishment, it has been supposed would operate notice to the defendant, affording him full opportunity to appear and defend, upon the presumption, deemed just and reasonable, that he has actual or constructive possession of his property and rights or credits, which can not be disturbed by a seizure or levy of legal process without his knowledge, or without information coming to him, if he .is of ordinary diligence in regard to his own interests. The complaint, the primary pleading, is filed in the same form, containing no other averments than are .contained in the complaint when the suit is commenced by the issue and service of personal process; and, as we have seen, the issues pertaining to the suit are the issues pertaining to a suit in personam. The judgment rendered is general and personal, that the plaintiff have and recover of the defendant ; and upon it and for its enforcement any process may issue which can issue upon a personal judgment, and is leviable upon any property of the defendant, the subject of levy and sale to satisfy a judgment. — Betancourt v. Eberlin, 71 Ala. 461. The theory, borrowed from judicial decision, has been introduced into the statute. Code, § 3003. While the presumption has been deemed just and reasonable that the seizure-or levy would operate notice to the defendant, if he be a non-resident, for
Not passing beyond the necessities of the present case, an attachment issuing against a non-resident of the State, we are constrained, in view of the decisions of the Supreme Court of the United States, to depart from the theory of an attachment which has.prevailed. These decisions declare that, as to non-residents of the State, the jurisdiction of the court attaches only because of the power of the State over all property within its territory, and beyond binding and affecting the property attached, or the effects garnished, the jurisdiction of the court cannot extend, if there be not a personal appearance of the defendant. Of consequence, in such case, an attachment is a proceeding in the nature of a proceeding in ran, rather than that of a proceeding in personam.— Cooper v. Reynolds, 10 Wall 308; Pennoyer v. Neff, 95 U. S, 714; St. Clair v. Cox, 106 U. S. 350; Freeman v. Alderson, 119 U. S. 185; Cooley, Cons. Lim. (6th ed.), 498. The judgment rendered must correspond to the nature of the proceeding. Of necessity, it must ascertain and declare the amount of the debt, claim or demand sought to be enforced by the attachment; and this
The result is the judgment of the City Court must be reversed, a judgment rendered overruling the motions to discharge the levy and to dissolve the attachment, and the cause remanded for further proceedings in conformity to this opinion.