Opinion
Fall Sessions, 1852.
Comegys, for the rule.
Fisher, contra.
FOREIGN ATTACHMENT. Land attached, as per inquisition; judgment; fieri facias; levy on land and inquisition; venditioni exponas, and sale of defendant's lands.
A motion was now made by Mr. Comegys, in behalf of other creditors of Jenifer Taylor, on affidavit filed that Taylor was and had been from his birth, a resident of the State, for a rule to show cause why the attachment should not be dissolved. Mr. Fisher objected to the rule, that it was too late, and came from improper parties. He argued that after judgment and execution, it was not competent for the defendant, much less for third parties, to set aside the judgment for informality of process.
Mr. Comegys said, that time had nothing to do with it. The contest is between creditors. The affiants are judgment creditors. They claim the right to controvert the judgment of plaintiffs, because they are interested to exclude it. The proceeds of sale are not sufficient to pay all. They had no interest to controvert the judgment of plaintiffs, until it appeared by a sale that the defendant's property was not sufficient to pay the judgment creditors. And if the proceeding in this case be illegal, they may, at any time, exclude it from application of the proceeds of sale. He cited McCaulley vs. Shute, ante. 26.
Mr. Fisher replied, that it was not reasonable to allow either the defendant or his other creditors to object to the form of action upon which this judgment was obtained; after judgment and execution. Reasonable diligence would bring them in sooner, especially where it appears that the defendant was in the county and in the court, as appears by his confession of judgment to the other creditors.
Mr. Comegys. — If he had confessed judgment in this, as in the other cases, they would all stand on the same footing; but the plaintiff chose to attempt getting ahead of all other creditors, by suing out a foreign attachment, and he must see that the judgment founded upon it is regular and legal.
The court discharged the rule.