Clark v. Quinn, 27 N.C. 175, 5 Ired. 175 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 175, 5 Ired. 175

WILLIAM R. CLARK vs. JAMES QUINN.

Aa attachment before a justice of the peace, not made on its face returnable within thirty days from the issuing thereof, is void, by the express provisions of our act of Assembly concerning attachments.

So, attachments from a justice, like other original process, not made returnable on a certain day, are void.

The ease of Washington v. Samders, 2 Dev. Rep. 343, cited and approved.

Appeal from the Superior Court of Law of Lincoln County, at the Fall Term, 1844, his Honor Judge Manly presiding.

This was an action of trover, to recover damages for the conversion of a stage coach, harness, and eight horses, which the plaintiff claimed a property in, by virtue of levies, which he had made as a constable of the county of Lincoln, under six several attachments, issued at the instance of six several creditors of one Trice, an absconding debtor; each attachment was for the recovery of a sum of money within the jurisdiction of a justice of the peace. After the levies were made by the plaintiff, under the said attachments, and the property taken into his possession, there came to the hands of the defendant (who was sheriff of Lincoln.) a fieri facias, issued from Buncombe County Court, in favor of one James Patton, against the said Trice. And the defendant, by virtue of this execution, levied on the aforesaid property, which then was in the hands of the plaintiff, took it away and converted it to the payment of the said execution. Neither of the six attachments that were in the hands of the plaintiff, was made returnable at any certain day within thirty days from the teste of the same, nor within thirty days from the issuing of the same. The court was of the opinion that the attachments were void, and that the levies made under them by the plaintiff, on the property in controversy, vested no title in him. The plaintiff then suffered a non-suit, and appealed.

Guión for the plaintiff.

Boyden and H. W. Miller for the defendant.

Daniel, J.

We concur with his Honor in opinion ; all and each of the said six attachments, under which the plaintiff claimed title to the property in dispute, were void. Neither of the attachments was returnable at any particular day, nor within thirty days after the issuing of them, nor were they, or either of them, returnable within thirty days from their teste. The act of Assembly requires that such attachment, returnable before Justices of the Peace, should be made returnable before the Justice issuing it, or some other Justice, on, oí before thirty days from the date thereof, to be proceeded in, &c. Rev. St. ch. 6, s. 13,17. In the case of Washington v. Saunders (2 Dev. Rep. 343) this court decided, that original process, (which these attachments are) without any certain day mentioned in it, to which it is returnable, is void; Ibid, 346. The plaintiff) therefore, had no right or title to the property as against Trice. The property of Trice, thus being in the possession of the plaintiff, was nevertheless subject to Patton’s execution.

Per Curiam, Judgment affirmed.