A court has no power to grant a judicial attachment after a return of "not found" made upon a writ issued against a nonresident: and where under these circumstances such a writ had been taken out: Held, that it was the duty of the court to dismiss it on motion made by or for the defendant, or even ex mero motu.
( Webb v. Bowler, 5 Jon., 362, and Israel v. Ivey, post, 551, cited and approved.)
The plaintiff issued a writ in trespass against the defendant, returnable to August Term, 1866, of the County Court of Madison. The defendant was a nonresident of the State and the writ was returned "not found." Upon motion, at that term, a judicial attachment against the property of the defendant was granted the plaintiff, no affidavit or bond being required of him, and the attachment was duly levied. Upon the return of the proceedings, the defendant's counsel, without filing a replevy bond, moved to dismiss. The motion was refused and the defendant appealed to the Superior Court. In that court, the motion was renewed before his Honor, Judge Buxton, and being refused, the defendant appealed.
BATTLE, J.
We are clearly of opinion that his Honor, in the court below, erred in refusing to dismiss the attachment. The reason given by him for refusal to dismiss shows that he was misled by considering the case as coming within the provision to section 52, chapter 31 of Revised Code alone, without reference to section 14 of the attachment law contained in chapter 7 of The Code.
The whole Revised Code was enacted as one statute consisting of various chapters, some of which have intimate connections with others and must be construed with reference to them. Hence the section of the chapter first above mentioned, which authorizes the issuing of a judicial attachment in certain cases, must be taken to mean such cases only as are not absolutely prohibited by section 14 of the attachment law. The object of the last named section was the protection of nonresidents from proceedings against their property without the security of an affidavit made and bond given by the plaintiff in the attachment, whenever the leading process in the suit has not been executed on the person of the defendant when within the State. It is manifest that without this provision every person having, or pretending to have, a claim against a nonresident, might evade the making an affidavit and giving a bond, as required in an original attachment, by first issuing original process against the defendant, and then, upon the return of non est inventus, electing to issue a judicial attachment, instead of issuing an alias or pluries capias under section 52, chapter 31 of Revised (430) Code above referred to.
The proceeding in this case purports not to be instituted, under section 16 chapter 7 of The Code, for an injury to the proper person or property of the plaintiff; but, if it were, it cannot be sustained, because it does not appear that the defendant had absconded or concealed himself within three months after the commission of the wrong.
The only inquiry which remains to be considered, is, whether the defendant had a right to move to dismiss the proceedings without having replevied the property attached. The judicial attachment having been issued without any legal authority, the defendant was not in any way within the jurisdiction of the court, and it had not therefore any authority to proceed; and nothing was left for it to do but to dismiss the proceeding, and this it ought to have done at the instance of the defendant, or of any other person, or ex mero motu. See Webb v. Bowler, 5 Jones, 362; Israel v. Ivey, post, 551, and the cases there referred to.
The judgment must be reversed, and it must be certified to the court below that this Court is of opinion that the attachment was not a proper process to be sued out by the plaintiff in this case, and that the writ ought to be quashed.
PER CURIAM. Judgment reversed.
(431)