61 A.2d 26 | D.C. | 1948
The parties to this action are attaching creditors of the same debtor. No question is raised as to the validity of either’s claim; the only point being priority of right as between their two attachments.
The appellee company had bonded Crumbley in the amount of $2,500 on a real estate broker’s bond, and upon his default paid this sum into the registry of the District Court of the United States for the District of Columbia for adjudication of conflicting claims and distribution to proven creditors. Thereafter appellee brought the present action against Crum-bley to indemnify itself on the bond and filed an attachment before judgment (on grounds later recited herein) on December 23, 1946, against monies of Crumbley held by the District Title Insurance Company and the Lawyers Title Insurance Company.
Appellant, Alice Rieffer, holds an unsatisfied judgment against the debtor, Crum-bley. In an attempt to satisfy said judgment she directed garnishment proceedings against the title companies on December 30, 1946. These companies answered admitting that they owed the debtor Crum-bley some $600 but stating that it was held subject to a prior attachment of the appel-lee company.
Upon discovery of the prior claim, Alice Rieffer filed a motion for a judgment of condemnation in her case and upon judgment being denied she moved for and was granted leave to intervene in the present case. Her contention in the trial court, which is reiterated here, was that appel-lee’s attachment proceedings were improperly brought as the basic affidavit was defective. This contention was argued to the trial court on the naked legal question,, neither party presenting any evidence. Upon adverse ruling, Alice Rieffer took an appeal to this court.
The single question determinative of the appeal is the legal sufficiency of appellee’s affidavit to support the attachment before
The District of Columbia statute on attachment before judgment
A comparison of the quoted portions of the affidavit and the statute clearly demonstrates appellant’s position. In appellee’s affidavit it was alleged that Crumbley had withdrawn himself from the District, but it was not stated that he “evades the service of ordinary process” by so doing. Appellant contends that this omission is fatal because attachment statutes being in derogation of the common law are strictly construed.
The weight of authority clearly favors a strict construction of attachment statutes. The Supreme Court in an early case said that since the law of attachment is in derogation of the' common law courts are not inclined to extend its provisions beyond the requirements of the statute authorizing it.
The rationale for the close scrutiny which is accorded affidavits in attachment before judgment rests not alone upon the fact that this is a harsh and unusual remedy in derogation of common law. The affidavit is the cornerstone of the court’s jurisdiction. Its sufficiency or failure may confer or divest jurisdiction over the case.
The question here is whether the omission of words to the effect that “the defendant evades the service of ordinary process” is a fatal omission. We believe that it is. This phrase of the statute is the heart of that particular requirement. Another portion of the statute allows attach
There is no case in this jurisdiction exactly in point,
Reversed.
Code 1940, § 16 — 301.
Mitchell v. St. Maxent’s Lessee, 4 Wall. 237, 18 L.Ed. 326. See also Martin v. Schillo, 389 Ill. 607, 00 N.E.2d 392, certiorari denied 325 U.S. 880, 65 S.Ct. 1572, 89 L.Ed. 1990; Massman v. Snyder, 5 Cir., 37 E.2d 825; Sinclair Refining Co. v. Bounds, 198 Ark. 149, 127 S.W.2d 629; Cornett v. Greever, 272 Ky. 241, 113 S.W.2d 1127; 4 Am.Jur. § 26; 7 C.J.S., Attachment, § 91, p. 261.
General Finance Co. v. Powell, 112 Mont. 535, 118 P.2d 751.
John Canelli Co. v. Brewing Corporation of America, 67 Ohio App. 155, 36 N.E.2d 45.
Jewett State Bank, Inc., v. Evans, Tex.Civ.App., 129 S.W.2d 1202.
Weil v. Quam, 21 N.D. 344, 131 N. W. 244; 7 C.J.S., Attachment, § 113, p. 278.
There is a split of authority on the question of whether a judgment founded on a defective affidavit is voidable or void and thus subject to collateral attack. See Hayes v. Conger, 36 App.D.C. 202; and cf. Duxbury v. Dahle, 78 Minn. 427, 81 N.W. 198, 79 Am.St.Rep. 408. The point is not in question here and no opinion is expressed.
A. D. Fletcher & Son v. Gordon, 219 Iowa 661, 259 N.W. 204.
But see: Boulter v. Behrend, 9 Mackey, 567, 20 D.C. 567; and cf. Wilkins & Co. v. Hillman, 8 App.D.C. 469.
Breakstone Bros. Bronx Branch v. Hyman, 94 Misc. 171, 157 N.Y.S. 898, 900; and see: Doheny v. Worden, 75 App.Div. 47, 77 N.Y.S. 959; 7 C.J.S., Attachment, § 120, p. 298; cf. Malone v. Handley, 81 Ala. 117, 8 So. 189.
Johnson v. Kaufman, 104 Ky. 494, 47 S.W. 324.