Branch v. . Frank

81 N.C. 180

• Court: Supreme Court of North Carolina
• Decided: June 5, 1879
• Status: Published

Opinion

Ashe, J.

This was a motion to vacate an attachment. The motion was based upon two grounds; first, that the af fidavit for the attachment did not state “that the court has jurisdiction of the subject matter of the actionsecond, “that it did not state positively that the defendants had property in the state, but stated that the defendants had property therein, as plaintiffs are informed and believe, consisting of a debt due or shortly to be due them by L. A. Farinholt in Weldon.”

It seems that the corrrt below fell into the error of confounding the requisites of the affidavit for service of summons by publication with those for obtaining a warrant of attachment, the first as prescribed in section 8S of the code of civil procedure, and the latter in section 201, and are quite different. By section 201 it is provided the warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists against the defendant,, specifying the amount of the claim and the grounds thereof, and that defendant is a foreign corporation, or not a resident of this state. The affidavit in this case so far as relates to the obtaining the warrant of attachment, comes fully up to the requirements of the law — the second, third and fourth paragraphs set forth the fact that a cause of action exists against the defendants, and state with sufficient precision the amount and grounds thereof; and the sixth states that the defendants are non-residents of the state. This is all that is needful to obtain the warrant. There is no provision in this section that requires the statement “that the court has jurisdiction of the subject matter of the action, nor that the defend ant has property in this state.”

The error assigned is for not dismissing the action for vrant of a legal service of the process. We have nothing to do here with that question. No such order was made in the court below. The action is still pending in the superior court of Halifax county. And the only question for our consideration is whether the affidavit was sufficient for obtaining the warrant of attachment.

The attachment under the code is a '“provisional remedy and is always ancillary to an action commenced by summons, its proceedings are not jurisdictional, and any errors committed are capable of being amended.” 1 Tiffany and Smith, 315. It is commenced by summons, and may be issued at any time, with the summons or afterwards; and its object is to secure the property of the defendant for the satisfaction of such judgment as the plaintiff may recover against him. If the proceedings for obtaining the warrant are regular, the property seized by virtue of its exigence must be held in custodia legis until the action to which it is ancillary shall be determined. In this case the action is still pending,. The affidavit to obtain the warrant was sufficient. It was error to vacate the attachment before judgment, however defective the affidavit may be, for the purpose of having seryice of the summons by publication, for It is possible that may be amended. There is error. Let this be certified, &o.

Error. Reversed,