81 Ala. 117 | Ala. | 1886
— 'The present is a suit by Malone to recover. damages of defendants for wrongfully and vexatiously suing out an attachment which was levied on plaintiff’s goods and' effects.
Malone was a retail merchant, and had purchased goods from Handley, Eeeves & Co., amounting to near eight hundred dollars, which was unpaid. About three-fourths of.
There is a marked difference in the language of the statutes of the different States. Many of them require not only the secretion or concealment, but the secretion must be with the intent to avoid the service of process in the particular case, or class of cases. Under such statutory requirements, to abscond or secrete one’s self to escape criminal arrest, furnishes no ground for attachment in a civil suit; for the intent to evade service under civil process is wanting. — Evans v. Saul, 8 Martin La., N. S. 247; Lynde v. Montgomery, 15 Wend. 461; Fitch v. Waite, 5 Conn. 117; Drake on Att. §§ 48, 51; 1 Waite Ac. & Def. 416-7 ; North v. McDonald; 1 Biss. 57 ; U. S. v. O’Brian, 3 Dill. 381.
The provision of the statute under which the attachment in this case was issued, contains no word or phrase which indicates that the act of secretion or concealment shall be influenced by the motive or intent to avoid service of process. “ Secretes himself so that the ordinary process of law can not be served on him,” is the language of our statute. That is, the secretion must be such, or so complete, as that process can not be served on him. Not being able to serve him personally, the law has furnished the creditor with another means of perfecting service ; namely, by attachment of his goods. And this rule applies equally to the second and third grounds for attachment; for if the debtor absconds, he places it as effectually out of the power of his creditor to serve him with process, as if he secreted himself, or resided without the State. And fraudulent or other intent is not made one of the conditions on which this statutory remedy can be resorted to. The defense comes
The charges of the City Court are in accordance with our views, and the judgment must be affirmed.