79 F. 582 | 8th Cir. | 1897
after stating the case as above, delivered the opinion of the court.
1. An attachment is an ancillary remedy provided by statute, by means of which a contingent lien is obtained and impressed upon property of a defendant, which becomes vested and perfected on entry of judgment and levy of execution. Being a remedy provided by statute, and resting on the statute alone, an unconditional repeal of the statute before judgment, and while the lien still remains contingent, destroys the lien. But such lien, though pertaining to the remedy given by statute, is a substantial and valuable security, and, upon a repeal of the statute, would be preserved and continued by a saving (¡lause excepting pending attachments from the effect of the repealing statute.
2. The act of 1895 did not abolish the remedy by attachment, nor purport to affect the lien, or the validity of attachments theretofore lawfully issued and then existing. It simply, and as to the future, dropped out of the statute one of the causes for issuing the writ; so that, after the act went into effect, that ceased to be a ground upon which an issuance of such writ could be claimed. The act did not provide that writs lawfully issued upon that ground, while it was a lawful ground for attachment, should abatí;, dr that acts done under such waits should be held void, or that liens obtained under them should lapse. Full effect is given to the statute by allowing to it prospective operation. The existing writ in this case, and the lien of such writ, were uot affected by any of the terms of the statute. The stated cause upon which it was issued, valid at the time, and effectual then to obtain a valid writ, was a thing of the past, which had served its purpose at the proper time, anil was no longer material, except to show that the wwit was, when issued, lawfully issued.
3. But while we think it clear that it was not intended by the legislature that this act of 3895 should have a retroactive operation, and affect attachments then outstanding, and that the act will not bear that construction, the constitution of Colorado, by section 3.1 of the bill of rights, ordaining that no law retrospective in its oper
