Opinion
12-24-1926
ALTSCHULER v. OWEN.
Sidney W. Eldridge, of Elizabeth, for petitioners. Rex B. Altschuler, of Hackensack, for respondent.
Action by Robert A. Altschuler against Charles W. Owen, in which a writ of attachment was issued and an auditor appointed. On petition of A. C. Keppler and others. Appointment of auditor set aside.
Sidney W. Eldridge, of Elizabeth, for petitioners.
Rex B. Altschuler, of Hackensack, for respondent.
PORTER, J. The facts which were stipulated by counsel on this motion are, in part, as follows:
(1) Keppler & Co. brought an attachment suit against Charles W. Owen, an absconding and nonresident debtor, on August 3, 1926, for $58,840.88. A writ was delivered to the sheriff of Bergen county on August 4, 1926, returnable August 23, 1926, whereupon he levied on certain residence property and contents. This writ was returned to the clerk of the Supreme Court by the sheriff on August 13, 1926.
(2) On August 10, 1926, an attachment suit was brought in the Bergen county circuit court against said Owen by Robert A. Altschuler for $5,512.50, and a writ of attachment issued on that date returnable on September 14, 1926. Said writ was delivered to the sheriff on August 10, 1926, and he levied on that date on 20 shares of stock of United Bond & Mortgage Company and a certificate of membership in Hackensack Golf Club, all standing in the name of the said defendant.
(3) An auditor was appointed by the Supreme Court on August 26, 1926, and an auditor was appointed by the circuit court on September 14, 1926.
(4) On August 26, 1926, an alias writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid, directed to the sheriff of Bergen county, who thereunder on August 31, 1926, levied upon the 20 shares of stock of United Bond & Mortgage Company and the certificate of membership in Hackensack Golf Club aforesaid.
(5) On September 18, 1926, a pluries writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid, directed to the sheriff of Bergen county, who thereunder, on October 8, 1926, levied upon the 20 shares of stock of United Bond & Mortgage Company and the certificate of membership in Hackensack Golf Club aforesaid.
It seems settled, under the decisions of this state, that more than one writ of attachment may issue out of the same court against the same defendant at the suit of different plaintiffs, but that but one such suit be permitted to go to judgment and but one auditor shall be appointed.
The legislative intent was to conserve theproperty of an absent or absconding debtor for the benefit of the attaching and applying creditors, to take the property into the custody of the law and to administer it for that purpose. Harris v. Linnard, 9 N. J. Law, 58; Cummins v. Blair, 18 N. J. Law, 151; Del. Hoyo v. Brundred, 20 N. J. Law, 328; Brown v. Bissett, 21 N. J. Law, 46; Duftin v. Wolf, 21 N. J. Law, 475; Blatchford v. Conover, 40 N. J. Eq. 205, 1 A. 16, 7 A. 354; Woodward v. Lishman, 80 N. J. Law, 586, 78 A. 701.
The case at bar, however, is distinguishable from all of the above-cited cases, in that the writs were not issued out of the same court and the property levied on was not the same. No case is cited which covers this situation, nor have I found any. In principle, however, I see no difference. The writ in the Supreme Court suit was Issued and executed prior to the circuit court writ, and is therefore the senior writ, and should take precedence. This is so notwithstanding the fact that different property was levied on under the original writs.
The auditor appointed by the Supreme Court in the Keppler suit should administer all of the property levied on for the benefit of the plaintiff in that suit and applying creditors thereunder as provided by statute.
The appointment of the auditor in the Altschuler circuit court suit should he set aside.
An order will be signed in accordance with these views.