Cherry v. Nelson, 52 N.C. 141, 7 Jones 141 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 141, 7 Jones 141

T. R. CHERRY v. JAMES NELSON.

In an attachment for debt, objections to the sufficiency of the affidavit or bond, can only be taken by a plea in abatement.

An attachment under the 7th chapter, 1st section, of the Revised Code, may be issued by a clerk of a County or Superior Court.

This was a motion to quash proceedings in an attachment, before Manly, J., at a Special Term of Pitt Superior Court, (July, 1859.)

The affidavit was in the usual form, stating the defendant’s indebtedness, &c., except that it was not signed by the plaintiff, or any one for him, and was not certified by any one. This was the first ground on. which the motion to quash was predicated.

The writ of attachment was issued by the clerk of the County Court of Pitt. This was the second ground urged for quashing.

There was a bond filed, following the form as prescribed in the statute, (Rev. Code, ch. 7, sec. 4,) which it was contended did not secure the defendant his costs in the suit, as it only provides for the costs and damages that might be recovered in any suit that may hereafter be brought, which was the third ground for quashing. The Court refused the motion to quash, and the defendant appealed.

Donnell and Warren, for the plaintiff.

Dodmcm, for the defendant.

Manly, J.

The first ground of objection to the proceed-' ings will not sustain a motion to quash. The statute (Rev, Code, chap. 7, sec. 3,) requires an affidavit of the debt and a bond for costs, and also for damages which may be recovered, before the officer is authorised to issue the attachment, and directs that the bond, together with tbe' affidavit of the party complaining, subscribed with his proper name, shall be returned, &c. But it provides, at the close of the section, that every attachment issued without bond and affidavit taken and returned as aforesaid, shall be abated on the flea of the defendant.

A form of affidavit is set out in the proceedings, but it is neither subscribed, nor is it certified in the usual way. However fatal such a defect might be, if brought forward by flea in abatement, we think it quite clear, it can only be taken advantage of in that way. This is the mode of redress given by the statute, and excludes all others.

There are obvious reasons why the Legislature might require an absconding, or non-resident, debtor to enter an appearance and replevy, before he could be permitted to take exception to the form of proceeding in a matter not at all touching the merits of the complaint. The law, at any rate, gives this remedy, and we think no other is admissible.

This complaint was made to the clerk of the court of pleas and quarter sessions of Pitt county, and the attachment was issued by him. It is expressly provided by the statute, that this officer shall have the power to receive such complaint and issue process, and the objection, therefore, to the officer is untenable.

■ To the 3rd objection, that there was no bond given to secure the defendant’s cost, it is to be observed, a bond has been taken and returned, and it-is the bond prescribed by the statute. Whatever we may think of it, the Legislature seems to have thought it fulfilled the requirement of the law. Be this as it may, we think the alleged defective conditions of the bond, can only be taken advantage of by the plea. Here again reasons may be perceived, why the Legislature would not allow one to take advantage of such defects without appearing and pleading, as in the matter of defect, now under consideration, the Assembly might not deem it expedient to secure the costs of a defendant before any were likely to be incurred.

. Upon the whole, the judgment of this Court is, there was no error below in refusing to quash.

This must be certified to the Superior Court of law for Pitt, to the end, said Court may proceed with the case. See the case of Evans v. Andrews, ante 117.

Per,Curiam,

Judgment affirmed.