Opinion
No. 82-380
Decided December 27, 1983
1. Attachment — Statutory Provisions — Equity Proceedings Whatever attachment powers are granted equity plaintiffs by the statute permitting attachments in equity proceedings, the statute governing modification or discharge of any lien acquired by proceedings in equity empowers the court to dissolve or modify improper attachments. RSA 498:16, :21.
2. Attachment — Statutory Provisions — Equity Proceedings In equity proceeding, where the trial court denied defendant's motion to strike an ex parte attachment, which was later released upon the posting of a cash bond by the defendant, the trial court having concluded that the statute permitting attachments in equity proceedings left it no discretion to vacate the attachment and, for that reason, having declined to receive evidence bearing on the issues of the likelihood of the plaintiffs' success or the sufficiency of the defendant's assets under the hearing provision of the pre-judgment attachment procedure statute, the supreme court concluded that the trial court erred by disregarding the statute governing modification or discharge of any lien acquired by proceedings in equity, which empowers the trial court to dissolve or modify improper attachments, and the supreme court remanded the case so that the defendant could challenge the attachment's validity. RSA 498:16, :21.
3. Attachment — Statutory Provisions — Generally The statute governing pre-judgment attachment procedure grants no substantive right of attachment; rather, it qualifies the rights given plaintiffs in the statutes governing attachments in actions at law and in equity proceedings by prescribing detailed procedures governing requests for attachments before judgment, both at law and in equity. RSA 498:16, 511:1, ch. 511-A.
4. Attachment — Statutory Provisions — Generally Both the plain meaning of the words "as of right" in the statute permitting attachments in equity proceedings and the supreme court's historical study of that provision indicate that this language, which first appeared in the Public Statutes of 1891, chapter 205, section 11, purports to give plaintiffs in equity substantially greater procedural power to attach ex parte than does its 1973 counterpart, the provision of the pre-judgment attachment procedure statute governing exceptions for attachment prior to hearing. RSA 498:16, 511-A:8.
5. Attachment — Statutory Provisions — Generally Although the 1973 legislation which enacted the pre-judgment attachment procedure statute did not alter the language of either the statute governing attachment in actions at law or the statute permitting attachments in equity proceedings, it necessarily restricted the authority that had been provided by that language, to bring New Hampshire's attachment procedures within constitutional bounds. RSA 498:16, 511:1, ch. 511-A.
6. Attachment — Statutory Provisions — Generally To the extent that either the statute governing attachments in actions at law or the statute permitting attachments in equity proceedings may be read inconsistently with the prejudgment attachment procedure statute, the later statute must control. RSA 498:16, 511:1, ch. 511-A.
7. Attachment — Statutory Provisions — Equity Proceedings Since the language "as of right" in the statute permitting attachments in equity proceedings may not be given effect either constitutionally or consistently with the provisions of the prejudgment attachment procedure statute governing hearing by the court and exceptions for attachment prior to hearing, it must be regarded as having been repealed by implication. RSA 498:16, 511-A:1, :8.
8. Attachment — Statutory Provisions — Equity Proceedings In an equity proceeding, where the trial court denied defendant's motion to strike an ex parte attachment, which was later released upon the posting of a cash bond by the defendant, the trial court having concluded that the statute permitting attachments in equity proceedings left it no discretion to vacate the attachment, and for that reason, having declined to receive evidence bearing on the issues of the likelihood of the plaintiffs' success or the sufficiency of the defendant's assets under the hearing provision of the prejudgment procedure statute, the supreme court remanded the case to the trial court for a hearing to determine if the original attachment was justifiable under the statute governing pre-judgment attachment procedure, and stated that if the attachment may not properly be continued in effect under the provisions of that chapter, then the defendant's cash bond must be released free of any claims by the plaintiffs. RSA 498:16, ch. 511-A.
Smith, Currier, Connor, Wilder Lieberman P.A., of Nashua (Jeffrey A. Zall on the brief, and Philip R. Currier orally), for the plaintiffs.
Augustine J. McDonough P.A., of Manchester (Mark L. Mallory on the brief, and Kenneth G. Bouchard orally), for the defendant.
The plaintiffs alleged a business partnership with the defendant and petitioned the superior court for an accounting in equity and a writ of attachment. On May 12, 1982, the Trial Court (Goode, J.) granted the petition for the writ ex parte, and on the same day the plaintiffs' attorneys attached the defendant's house. Soon thereafter, the defendant moved to strike the attachment on several grounds. He claimed that it had been improperly granted for reasons that "do not come within the statute." The record does not clearly indicate what he meant by this language, and it will not be considered further. He went on to claim that the attachment could not be justified by a showing of probability of success on the merits, and was unnecessary due to the sufficiency of the defendant's assets.
The Superior Court (Flynn, J.) denied the motion, relying on RSA 498:16, which provides that any plaintiff in equity "shall have a writ of attachment . . . as of right." The judge concluded that the statute left him no discretion to vacate the attachment and for that reason declined to receive evidence bearing on the issues of the likelihood of the plaintiffs' success or the sufficiency of the defendant's assets under RSA 511-A:3. The defendant later obtained the attachment's release by posting a $15,000 cash bond. At oral argument, counsel for the defendant represented without objection that the bond was still posted.
[1, 2] At issue here is the superior court's decision not to inquire into the attachment's grounds when the defendant so requested. We conclude that the court erred by disregarding RSA 498:21, which provides:
"Any lien acquired by proceedings in equity may be released, discharged or modified by the court in such manner and upon such terms as justice may require."
Whatever attachment powers are granted equity plaintiffs by RSA 498:16, RSA 498:21 empowers the court to dissolve or modify improper attachments. We remand so that the defendant may challenge the original attachment's validity.
Our inquiry does not end here, however. In his motion to strike the attachment, the defendant asserted that the plaintiffs had no automatic right to an attachment, notwithstanding the provisions of RSA 498:16. He urges that the plaintiffs were bound to comply with the stringent procedural requirements of RSA chapter 511-A. Because the apparent conflict between the two statutes is likely to arise in future cases, we will consider its resolution at this time.
Before 1973, plaintiffs both at law, RSA 511:1, and in equity, RSA 498:16, enjoyed broad power to attach their adversaries' property before judgment, subject only to after-the-fact remedies against unreasonable or excessive attachments provided in RSA 511:53 and RSA 498:21. RSA chapter 511-A, enacted in 1973, grants no substantive right of attachment; rather, it qualifies the rights given plaintiffs in RSA 511:1 and RSA 498:16 by prescribing detailed procedures governing requests for attachments before judgment, both at law and in equity.
[4, 5] Both the plain meaning of the words "as of right" in RSA 498:16 and our historical study of that provision indicate that this language, which first appeared in the Public Statutes of 1891, chapter 205, section 11, purports to give plaintiffs in equity substantially greater procedural power to attach ex parte than does its 1973 counterpart, RSA 511-A:8. Although the 1973 legislation did not alter the language of either RSA 511:1 or RSA 498:16, it necessarily restricted the authority that had been provided by that language, to bring New Hampshire's attachment procedures within constitutional bounds. See Clement v. Four North State Street Corporation, 360 F. Supp. 933 (D.N.H. 1973).
[6, 7] To the extent, then, that either RSA 511:1 or RSA 498:16 may be read inconsistently with RSA chapter 511-A, the later statute must control. See Hampton Nat'l Bank v. Desjardins, 114 N.H. 68, 314 A.2d 654 (1974). Since the language "as of right" in RSA 498:16 may not be given effect either constitutionally or consistently with RSA 511-A:1 and :8, it must be regarded as having been repealed by implication. See Board of Selectmen v. Planning Bd., 118 N.H. 150, 152, 383 A.2d 1122, 1124 (1978).
We remand to the superior court for a hearing to determine if the original attachment in this case is justifiable under RSA chapter 511-A. If the attachment may not properly be continued in effect under the provisions of that chapter, as the defendant contended in his motion to strike, then the defendant's cash bond must be released free of any claims by the plaintiffs.
Reversed.
SOUTER, J., did not sit.