Fridenberg v. Pierson

18 Cal. 152 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

We think that the bill in this case cannot be maintained upon the facts therein stated. The bill is filed to set aside the prior attachments of the defendants—the plaintiff being a junior attaching creditor—upon the ground of the insufficiency of. the affidavits of the defendants. The defect is alleged to be the omission to aver that the sums for which the writ is prayed are actual bona fide existing debts due and owing from the debtor, and the omission to state that the attachment was not sought, and the action was not prosecuted, to hinder, delay and defraud' creditors of the debtor. It is observable that no charge fraud is made; nor are these circumstances stated or relied on as proofs of fraud; but it is claimed that the attachments, by reason of these omissions, are nullities; and therefore, the property levied on by them stands unaffected by the proceeding, and subject to the plaintiff’s claim. .Drake on Attachment, sec. 771, says: “ Whatever irregularities may exist in the proceedings of an attaching creditor, it is a well settled rule that other attaching creditors cannot make themselves parties to those proceedings, for the purpose of defeating them on that account. But where an attachment is based on a fraudulent demand, or one which has in fact no existence, it is otherwise, as will appear from a review of the action of Courts of a high order of learning and ability.”

What are irregularities within the meaning of the text, is illustrated by the cases referred to by the author. Thus, in Foster v. Jones, (1 McCord, 116) the irregularity consisted in the omission of the plaintiff to make affidavit of his debt before suing out the writ of attachment. In Chambers v. McGee, (1 Hill, S. C. 229) in the omission to give the requisite bond; in Cumberland v. Hale, (3 McCord, 345) in giving the attachment bond in double the debt, instead of double the damages or sum sued for; in Kincaid v. Neall, (3 McCord, 201) in the omission to return the attachment bond; in Vanarsdale & Warnock v. Drum, (9 Mo. 401) for insufficient bond. In some eases, third parties have been allowed to intervene where the debtor was shown not to be subject to the process, or the defendants property not so subject. But, if the defendant does not insist upon the statutory steps being taken in the matter of a bond or affidavit, in the proper form, we cannot perceive upon what principle a creditor can interfere, any more than in the case of a judgment rendered upon an insufficient complaint, or otherwise irregular and reversible. (See Dewey v. Pollack, 8 Cal. 572; Patrick v. Montader, 13 Cal. 441.)

Judgment reversed and cause remanded.