35 N.C. 72 | N.C. | 1851
Case for taking and converting a certain quantity of lumber, belonging to the plaintiff, to the defendants' use. The defendants justified under an attachment, which one of the defendants, acting as an officer, professed to have levied upon it as the property of one Allen Chancy, and alleging that the conveyance from Chancy to the plaintiff was fraudulent against creditors. It was objected on the part of plaintiff, among other things, that the attachment was void, as it appeared upon the to the defendant, and especially because, so far as the execution issuing upon the attachment is concerned, it was void, as it appeared upon the proceedings themselves that the judgment was rendered without any publication or other notice to the defendant in the attachment; and that the attachment itself was void because not made returnable to any particular day; the plaintiff offered to prove that the day mentioned in the attachment as that on which it was returnable had been interlined since its execution, fraudulently, by defendants, or one of (73) them; but the court overruled both objections of the plaintiff, and held that the judgment in the attachment was good; that notice was necessary, but that that was to be presumed to have been given by the justice in this case who granted the judgment, and that the attachment was good without any particular day of return being mentioned in it, if it stated that it was returnable within thirty days, which it did, and that, therefore, the insertion of the particular day by the defendant or anyone else would make no difference. A verdict having been rendered in favor of defendants, and a rule for a new trial discharged and judgment rendered for defendants, the plaintiff appealed.
The attachment under which defendant justified was made returnable "within thirty days from its date," but did not specify any particular day for its return. Plaintiff insisted that it was void *63
by reason of this omission. The provision in reference to the return of warrants and attachments, within the jurisdiction of a single justice are expressed in the same words, "on or before thirty days after date thereof."Duffy v. Averitt,
It was contended by counsel for plaintiff that there is a difference between warrants and attachments which calls for a different construction of the same words, for in warrants the defendant may be notified of the return day by the officer, whereas in attachments the defendant is absent, and can receive no such notice, and, therefore, the day ought to be specified in the writ. The fallacy of the argument is (74) in this: A warrant is returned for trial and final judgment; an attachment in returned merely to possess some single justice of the case, whereupon it becomes his duty to cause advertisement to be made for thirty days, during all of which time the defendant may apply to him and replevy and enter this defense, so as to prevent final judgment. It might in some cases be convenient for the defendant in a warrant, if it specified a particular day for its return; it can never be so in an attachment if the defendant's is absent, for he, of course, cannot know of it until the advertisement; but, in truth, a specific return day would be inconsistent in either case as the process is returnable before any justice of the peace, and they are not presumed to have stated days or places for business.
A final judgment was rendered by the magistrate before whom the judgment had been allowed, after the expiration of thirty days from the time of the return. But it does not appear by the proceedings that due advertisement had been made, and the plaintiff insisted that, on this account, the judgment was void and, therefore, the defendant could not impeach the assignment of the debtor as void against creditors on the ground of fraud. The general rule is that there must be a judgment establishing the debt in order to impeach an assignment as void against creditors. It would seem, however, that an attachment forms an exception, and the officer at last may justify the levy under the writ, as he is thereby required to take the property into his possession before the judgment. But we pass by this question, for we consider the judgment valid. Chapter 31, sec. 108, Rev. Stat., provides: "Every judgment given in a court of record or before a single magistrate having jurisdiction of the subject shall be and continue in full force until reversed according to law." This puts judgments of single magistrates on higher ground that the judgments of inferior tribunals, according to the English law; and as the magistrate had jurisdiction (75) *64 in this case, everything is presumed to have been done which it was necessary to do in order to make the judgment regular, and his judgment, like a judgment given in a court of record, is in full force until reversed.
PER CURIAM. Judgment affirmed.
Cited: Spillman v. Williams,
