Safford v. Morris Metal Products Co., 121 A. 885

Safford v. Morris Metal Products Co.

121 A. 885 | Conn. | 1923

The trial court held that the instant case is governed by the decision in Ahern v. Purnell,62 Conn. 21, 25 A. 393, and rightly so. In that case a certain number of packages of tea were described in the return as property attached, and certain other property attempted to be attached was described as "all the stock and goods in said defendant's store, situated on Main Street, South Manchester, in said town," etc. The then-existing statute (General Statutes, 1888, § 907) relating to the method of procedure by the officer attaching, read as follows: ". . . in every case of attachment, the officer serving the process shall leave with the person whose estate or body is attached, or at the place of his usual abode, if within the State, a true and attested copy of the process and of the accompanying declaration or complaint, and of his return thereon, describing any estate attached." The present statute in this regard (General Statutes, 1918, *376 § 5862) is identical with the above except for the omission of the word "declaration," and the transposition of the words "place of his usual abode" to read "his usual place of abode," alterations in no way affecting its purview or effect. In the opinion in the case cited, the court goes on to say: "A description of the goods attached is clearly required. The object is not, as the defendants seem to suppose, merely to give the defendant in the suit notice of what is attached; the plaintiff has a right to know; other creditors have a right to know; and all concerned are entitled to facilities for holding the officer to accountability." The court further observes: "The description gives little or no information to the parties interested, — certainly not such as the statute contemplates. . . . We can do no less than hold that such an attachment is inoperative, creating no lien." In the case just cited, the officer claimed that he had attached property described in his return as situated in a certain store; the attempted attachment of this property was denied by the court because the description was too general. If, as in the instant case, there is no description at all, is the officer to be in any better position? See also Sanford v. Pond,37 Conn. 588, for an earlier enunciation of the same doctrine.

Our statute above referred to requires, in the first instance, a valid seizure of the property; second, due service upon the defendant of a copy of the process with a description of the property attached in the officer's certificate; third, a return of the process to court with a like description of the property attached in the return as certified. All of these elements are prerequisites of a valid attachment. Passing by the first, compliance with which in the present case is doubtful, we find the second and third steps were not taken, except as to the property described in the original return. *377 The description of the property attached in any given case is termed an inventory. In the present case he made no inventory of any property beyond that described in the original return, he had no inventory, he never saw an inventory, he took no property except that described as aforesaid, he removed no property, and did nothing in the way of posting notices in the manner provided by statute as an alternative for removal. All that appears in the finding on appeal, is that he intended to attach some property, just what he did not know. He would have had to give further attention to listing the property proposed to be attached before service and return of the process, had he not taken the bond and released the property that he actually had attached as described in the original return. He should have had an attachment perfected so far as to be in a position to exactly describe the property before taking the bond, both for his own protection and that of the surety on the bond. He had gone no further in his efforts to attach than to make a seizure, if indeed his dealing with the property not included in the original return can be deemed a seizure. Assuming that there was a seizure, he had performed only one of the three requisites of a valid attachment; the other two above noted were just as vital.

Amendments can only be allowed where all of the steps to be pursued have been taken, but some error in detailing them has supervened. Two cases in which amendment of an officer's return has been allowed have been brought to our notice by applicant's counsel, but in both of them the acts before stated to be essential had been taken, but the return failed fully to correctly state them. In Palmer v. Thayer, 28 Conn. 237,241, the officer had given a wrong date of attachment, and he was allowed to correct it in accordance with the fact: in Hannon v. Bramley, 65 Conn. 193, 194, 200, *378 32 A. 336, the officer attached hay in a barn and, according to the provisions of the statute, posted a notice thereof on the barn door and left a copy of the process with the town clerk, but did not state in the return on the original that he performed these acts. Such corrections were properly made, but the fact does not in any way impair the validity of the conclusions above specified.

There is no error.

In this opinion the other judges concurred.