Opinion
(December Term, 1859.)
1. Attachments for debt, issued without bond and affidavit taken and returned, according to the statute, cannot be dismissed on motion, but the objection must be by plea in abatement. It is different with regard to attachments for damages.
2. A motion to quash an attachment because it is not averred in the face of the proceedings that the plaintiff is a resident of this State, must be supported by an affidavit asserting that fact.
MOTION to dismiss an attachment, heard before Dick, J., at the Fall Term, 1859, of CHATHAM.
Geo. E. Badger, J. H. Haughton, and J. H. Manning for plaintiff.
Hugh Waddell and E. Cantwell for defendant.
The affidavit, bond and attachment in this case are as follows:
STATE OF NORTH CAROLINA — Chatham County.
Peter G. Evans maketh oath that Thomas Andrews is justly indebted to him in the sum of $3,750, with interest from 22 June, 1853, to the best of his knowledge and belief, and that the said Thomas Andrews is the inhabitant of another government.
(Signed by the affiant and certified by a justice of the peace.) (118)
NORTH CAROLINA — Chatham County.
Know all men by these presents, that we, the subscribers, are held and firmly bound unto Thomas Andrews in the sum of $7,500, for the payment whereof we bind ourselves and our heirs firmly by these presents.
The condition of the above obligation is such that whereas Peter G. Evans has prayed and obtained an attachment against the estate of the said Thomas Andrews for the sum of $3,750, with interest from the 22 June, 1853, returnable, etc.: Now, if the said Peter G. Evans shall prosecute, etc. (Signed, with sureties, and witnessed by the justice of the peace taking the affidavit.)
State of North Carolina to the Sheriff of Chatham County — GREETING:
Whereas Peter G. Evans hath complained, on oath, before the subscriber that Thomas Andrews is justly indebted to him in the sum of $3,750, with interest from 22 June, 1853, and oath having also been made that the said Thomas Andrews is a resident of another government, so that the ordinary process of law cannot be served on him, and the said Peter G. Evans having given bond according to law: We therefore command you that you attach the estate of the said Thomas Andrews which may be found in your county, or so much thereof, repleviable on security, as shall be of sufficient value to satisfy the said debt, etc. (Returnable to the next term of court; date 17 October, 1857, and signed by the same justice of the peace.)
In the county court the defendant's counsel moved to dismiss the proceedings, which was refused, and the defendant appealed to the Superior Court. In the Superior Court the same motion was made, and (119) allowed by his Honor, from which the plaintiff appealed to this Court.
The grounds for this motion were:
1. Because the affiant did not make oath in the affidavit that the defendant is an inhabitant of another government, and cannot be personally served with process, as required by the act of Assembly.
2. Because the bond is not double the sum demanded.
3. Because it does not appear that the bond was taken before the attachment was granted.
4. Because the bond and affidavit are not dated.
5. Because it is nowhere averred on the face of the proceedings that the plaintiff is a resident of this State.
All of the positions taken in support of the motion to dismiss (or quash) the attachment because of supposed defects either in the affidavit or bond are untenable, for the statute which originates the proceeding by attachment expressly provides "that every attachment issued without bond and affidavit, taken and returned as aforesaid, shall be abated on the plea of the defendant," thereby excluding a motion to quash. And herein is a marked distinction between an attachment for debt and one for damages where the person or property is injured. The statute in the latter case enacts, that "for such defects the proceedings shall be void, and the court shall not proceed therein." Rev. Code, ch. 7, secs. 3 and 17; Webb v. Bowler, 50 N.C. 362.
But the objection that it nowhere appears, and is not averred, on the face of the proceeding that the plaintiff is a resident of this State, to whom alone the remedy by attachment is given against debtors who are inhabitants of another government (Rev. Code, ch. 7, sec. 2), is not so readily disposed of; for it raises a question of jurisdiction; and, although the court of pleas and quarter sessions, to which the attachment was returned, has a general jurisdiction in respects to debts, still (120) the proceeding by attachment is in derogation of the common law, and must be limited by the provisions of the statute; so that an attachment against an inhabitant of another government can only be entertained by the court in a case where the plaintiff is a resident of this State; and the question is, that fact not being averred, and not appearing on the face of the proceedings, should the court "proceed" until the plaintiff has an opportunity of making an averment of the fact in his declaration, or should it quash the proceeding on the motion of the defendant?
This Court is of opinion that the proceeding may be quashed on motion, provided it be supported by an affidavit that the plaintiff is not a resident of this State, so as to present a preliminary question of fact, on which depends the jurisdiction of the court. But a motion, unless so supported, cannot be sustained; for, as we have seen, the justice of the peace was authorized to issue the attachment, the bond and affidavit being given, and the statute does not require that the fact of the plaintiff's being a resident of the State should be set out in the affidavit; and if the attachment properly issued without this fact appearing, it follows that a naked motion to quash because it does not appear ought not to be entertained; for, if so, the attachment ought not to have been granted. Hence, we conclude that the motion must be supported by an affidavit, so as to present an issue upon a fact, which the plaintiff, according to the form of proceeding prescribed by the statute, was not required to aver beforehand, and which, in fact, he had no opportunity to aver, and, therefore, if the defendant makes a motion on this ground, in anticipation of the declaration wherein the fact may be averred, the motion should be sustained by affidavit. No affidavit being made in this case the court below erred in quashing the attachment. Order reversed and procedendo.
PER CURIAM. Reversed.
Cited: Cherry v. Nelson, post, 143; Leak v. Moorman, 61 N.C. 169.
(121)