Randle v. Mellen

Miller, J., delivered the opinion of tho Court. This appeal is from an order quashing an attachment. The procéedings in the case must be stated with some particularity, in order that it maybe clearly seen how the questions to be disposed of, arise. It appears from the record, that Randle procured an attachment on warrant, to be issued out of the Court of Common Pleas against Mellen, as an absconding debtor.

The evidence of debt produced before the magistrate, was a draft for $ 1219.50 drawn by Mellen at Monterey, in ¹⁸⁵ Mexico, upon a New York firm, payable to the order of Randle, and protested for non-payment. The short note in the usual form declares upon this protested draft. The writ of attachment and the usual summons provided for in sec. 10, Art. 10 of the Code, were issued on the 21st of'May, 1886, returnable to the June rule day, which was the 14th of June. On the 11th of June, and before the return day, Mellen’s son, in behalf of his father, filed a petition to the- Judge of the Court, under sec. 21, Art. 10 of the Code, praying that the writ of attachment be quashed and set aside.

In this petition the son states, among other reasons why the writ should be quashed, that this draft was obtained from his father by Randle without any consideration and upon a threat. The Judge thereupon, and on the same day, (11th of June,) and in compliance with the requirements of this section of the Code, ordered the sheriff to return the writ and the proceedings thereunder immediately before him, and set the petition down for hearing on the 19th of June. The sheriff then made his return in obedience to this order. The return to the summons was in the usual form, “non est and copy set up at the Court House door,” and to the attachment “attached as per schedule,” and laid in the hands of several garnishees.

The record then states that afterwards, on the 19th of June, “an álias ivrit of summons was issued in the usual form to the sheriff, returnable to the July rule day,” (which was the 12th of July,) “and was by him duly returned non est.” After this, on the 7th of July, a demurrer (as- the record states) was made to the petition of Mellen’s son, in open Court, and the Court overruled the same, and quashed the attachment. Notwithstanding the attachment was thus quashed on the 7th of July, Randle, afterwards, on the 12th of the same month, (the return day of the alias writ of summons,) filed a petition in the case to the Judge, setting forth that Mellen had been twice successively returned ¹⁸⁶ non est by t'he sheriff, (the returns being those already mentioned,) and praying judgment for the writ of attachment to issue against his lands, tenements, goods and chattels, and on the same day the Judge ordered the writ to issue. This writ with the accompanying summons for Mellen was accordingly issued, returnable to the August rule day, which was the 9th of that month. On the 31st of July, and before the return day of this second writ, Mellen’s son, in behalf of his father, filed .another petition (the averments of which it is not necessary to staté,) under the same section of the Code, praying that the order directing this attachment to issue be rescinded, and that this attachment he also quashed and set aside.

The Judge thereupon passed the same order, and the same proceedings followed as in the case of the first attachment. Upon the final hearing of this second petition, which was, aEs the record states, after evidence had been taken for and against the same, the Court on the 1st of December, 1886, passed an order rescinding the order which had directed ' this second'" attachment to issue, and quashed the same and the proceedings thereunder. From this order Randle has taken the present appeal. It is manifest that counsel for Randle in conducting the case in the Court of Common Pleas, proceeded upon the assumption that what is usually called the short note case, was not affected by the quashing of' the attachment on the 7th of July.

They also assumed that they had the right to order an alias summons on the 19th of June, after the one issued with the attachment had been returned non est, and to use these two returns in the short note case for the purpose of obtaining an attachment under sec. 25, Art. 10, of the Code. But we do not so understand or interpret the attachment law. In our opinion neither of these assumptions is warranted by any provision of that law, nor by any established practice thereunder. The proceeding hy way of attachment against a non-resi ¹⁸⁷ dent or absconding debtor, is, in this State, regulated and governed entirely by statute.

Though now in common and daily use, it is still nevertheless regarded as an extraordinary proceeding, available only in those cases expressly provided for in the statutes authorizing it, and only then capable of being maintained by a substantial compliance with the statutory requirements apparent upon the face of the papers. The jurisdiction conferred upon the Courts in- such cases is uniformly held to be special and limited, distinct from and not embraced within their general jurisdiction, and cannot be legitimately exercised, unless the attaching creditor pursues the mode pointed out in the statute, and no intendment or presumption will be made in its support. 2 Poe’s PI. &Pr., sec. 502. The mode of obtaining an attachment on warrant is familiar to the profession, and is clearly prescribed in the Code. One of these provisions is that “ there shall be issued with every attachment, a writ of summons against the defendant, and a