Houston v. Porter, 32 N.C. 174, 10 Ired. 174 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 174, 10 Ired. 174

JOHN P. HOUSTON vs. HUGH G. PORTER & AL.

An attachment issued by a Justice out of Court and not made returnable within thirty days* is void.

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.

The cases of Ciarle v. Quinn, 5 Ire. 176, and Washington v. Saunders, 2 Dev. 346, cited and approved.

Appeal from the .Superior Court of Law of Union County, at the Spring T.erm 1849, his Honor Judge Ellis presiding.

This was a proceeding by attachment, issued by a Justice of the Peace out of GotÍEtj at the instance of the plain - tiff, against one Hugh G.Porter, one of the defendants, for the sum of about seventy-six dollars, 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 the plaintiff.

Thompson, for the defendants.

Nash, J.

By the Gth Ch. Rev. Stat. Sec. 13, power is given to a single magistrate out of Court to issue an attachment, in 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 absoltó&^^^^^T^is an original process without any retj^ «¡||?. T’S^ife/effect is the case of Clark v. Quinn, 5 Ire. 176, and likewise, the case11 which preceded it, of Dev. 346] The latter was decided airón commom^vp-| principles. Both at common law and uii|er^S^iraattachment in this case is void ; none orahe defeetsrffifíng of a nature to be cured by the appearance of thedefendant. 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,