Opinion
August Term, 1849.
1. An attachment issued by a justice out of court, and not made returnable within thirty days, is void.
2. A garnishee has a right to object that the attachment under which he is summoned is void, and that therefore no judgment should be rendered against him.
APPEAL from the Superior Court of Law of UNION, at Spring Term, 1849, Ellis, J., presiding.
This was a proceeding by attachment, issued by a justice of the peace out of court, at the instance of the plaintiff, against one Hugh G. Porter, one of the defendants, for the sum of about $76, and the other defendant, David Moore, was summoned as garnishee, and filed his garnishment. The attachment was not made returnable before any justice or within thirty days after its teste. A conditional judgment was taken against Porter by default. Moore resisted a motion for a judgment upon his garnishment, on the ground that the writ of attachment was void. The court having sustained this objection and directed the proceedings to be dismissed at the plaintiff's costs, the plaintiff appealed.
Bynum, Wilson and Alexander for plaintiff.
Thompson for defendants.
By sec. 13, ch. 6, Rev. Stat., power is given to a single magistrate out of court to issue an attachment in (175) all cases where by the law he has jurisdiction of the sum demanded, and it directs that it shall be made returnable before some justice on or before thirty days after the date thereof. In this case the attachment is defective and void. After directing the officer to attach so much of the defendant's property as may be sufficient to satisfy the plaintiff's debt, the writ proceeds: "and such estate so attached in your hands to secure or so provide that the same may be liable to further proceedings thereupon, to be had in relation thereto, according to law, so as to compel the said Hugh G. Porter to appear and answer to the above complaint, when and where you shall make known how you have executed this attachment." The attachment is not returnable on any particular day, nor before any justice or court, nor within thirty days after its teste. It is an absolute nullity. It is an original process without any return day. To this effect is the case of Clark v. Quinn, 27 N.C. 176, and, likewise, the case which preceded it, of Washington v. Saunders, 13 N.C. 346. The latter was decided upon common-law principles. Both at common law and under the statute, the attachment in this case is void; none of the defects being of a nature to be cured by the appearance of the defendant. As the attachment is void, a judgment on it would not protect the garnishee against his creditor, and he has therefore a right to make the objection.
PER CURIAM. Judgment affirmed.
Cited: Symons v. Northern, 49 N.C. 243.
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