Summary
In Rodrique v. Biron, 147 Vt. 90, 92, 510 A.2d 1321, 1322 (1986) (citations omitted), this Court recently reaffirmed the principle that "[w]here an attachment is made by filing, the property attached must be described with reasonable certainty in the return or in an inventory annexed thereto, and must be sufficiently identified to inform the defendant and those with whom he may deal that the property is attached."
Summary of this case from Spaulding v. CahillOpinion
No. 84-490
Opinion Filed April 18, 1986
1. Debtor and Creditor — Attachment — Duty of Serving Officer
Rather than take personal property into possession upon writ of attachment, serving officer may lodge copy of writ, with his return, in office proper for filing of financing statement. 12 V.S.A. § 3251. Serving officer is also required to make due return of writ with his doings thereon. V.R.C.P. 4.1(c).
2. Debtor and Creditor — Attachment — Description of Property
Where attachment is made by filing, property attached must be described with reasonable certainty in return or in inventory annexed thereto, and must be sufficiently identified to inform defendant and those with whom he may deal that property is attached; officer is further required to serve upon defendant list of all goods and chattels attached when copy of writ is served upon him. V.R.C.P. 4.1(d).
3. Debtor and Creditor — Attachment — Defective Return of Service
Where officer's return of service did not purport to attach any of judgment debtor's property, but simply indicated service by delivery of writ of attachment to town clerk, return was defective, and attempt to attach was wholly inoperative and created no valid lien.
4. Debtor and Creditor — Attachment — Form of Writ
Although there is no place on Official Form 2 V.R.C.P. for description of property to be attached, rule contemplates that list of goods and chattels attached shall be incorporated in or appended to writ. V.R.C.P. 4.1(d). Failure to sufficiently describe goods and estate attached in return of service renders return defective, and creates no valid lien.
Appeal by plaintiff, who had obtained writ of attachment of personal property of third-party defendant in another action, from trial court's dismissal of complaint seeking to recover livestock conveyed by third-party defendant to defendant Biron. Essex Superior Court, Martin, J., presiding. Affirmed.
Richard A. Axelrod and Steven A. Adler of Gensburg Axelrod, St. Johnsbury, for Plaintiff-Appellant.
May, Davies Franco, Barton, for Defendant-Appellee Biron.
Present: Allen, C.J., Hill, Peck and Hayes, JJ., and Barney, C.J. (Ret.), Specially Assigned
The plaintiff initiated this action against defendant Biron seeking to recover livestock which were conveyed by third-party defendant Young to Biron, or the value thereof. The plaintiff obtained an ex parte writ of attachment of the personal property of Young in another action brought against Young in which she sought her share of partnership assets. The writ of attachment was duly recorded in the town clerk's office where Young resided. Thereafter Young conveyed the livestock to Biron. The trial court concluded that the levy on the goods of Young was insufficient and ineffective as against Biron, and dismissed the complaint. The order is affirmed.
The writ commanded the attachment of "the goods or estate" of Young "to the value of $80,000." The officer's return states that he made service of the writ of attachment by delivery to the town clerk. Neither the writ of attachment nor the officer's return contained or had appended to it a list or description of the goods or estate attached.
Rather than take personal property into possession upon a writ of attachment, the serving officer may lodge a copy of the writ, with his return, in the office proper for the filing of a financing statement. 12 V.S.A. § 3251. He is also required "to make due return of the writ with his doings thereon." V.R.C.P. 4.1(c). Where an attachment is made by filing, the property attached must be described with reasonable certainty in the return or in an inventory annexed thereto, and must be sufficiently identified to inform the defendant and those with whom he may deal that the property is attached. Humphrey v. Wheeler, 92 Vt. 47, 49, 101 A. 1018, 1018 (1918); Pond v. Baker, 55 Vt. 400, 402 (1883). The officer is further required to serve upon the defendant a list of all goods and chattels attached when the copy of the writ is served upon him. V.R.C.P. 4.1(d).
The return of service here did not purport to attach any of Young's property. It simply indicated service by delivery of the writ of attachment to the town clerk. The return was thus defective, and the attempt to attach was wholly inoperative and created no valid lien. Keniston v. Stevens, 66 Vt. 351, 354, 29 A. 312, 313 (1894); Paul v. Burton, 32 Vt. 148, 157 (1859).
Appellant argues that the use of Official Form 2 V.R.C.P. created a valid and enforceable attachment, and that because there is no place for a description of the property to be attached on the form, a description is unnecessary. The rule contemplates that a list of goods and chattels attached shall be incorporated in or appended to the writ. V.R.C.P. 4.1(d) (Supp. 1985).
The deficiency here was not in the form of the writ, but in the failure to sufficiently describe the goods and estate attached in the return.
Affirmed.