Goldthwaite v. Bryant

26 S.C.L. 451

• Court: Court of Appeals of South Carolina
• Decided: February 15, 1840
• Status: Published

Opinion

Curia, per

Earle, J.

Whatever may be the correct practice in regard to issues made up to try the right of property, under the attachment Act, it is unnecessary to determine. The practice has been very general, if not uniform, in Charleston, to do this in the form of a feigned issue, in which the party claiming in opposition to the attaching creditor, is the plaintiff. Such was the case here ; and no doubt, the question can as well be tried in that form as any other. When Naylor came in and claimed title, he placed himself in the position of being an actor in the subsequent proceeding; he obtained possession of the mare, and rendered an action of trover unnecessary. The discontinuance was ordered at the instance of his counsel. If he had repudiated the issue, he could not have made that motion. By making it, he admitted himself to be the plaintiff in the proceeding ; as having instituted, and as having a right to abandon it. Having discontinued, the condition on which he rescinded the order of sale was not complied with, and the parties must be restored to the position which they occupied when he interposed. He can claim no better position than Matthews, in whose place he was substituted, that of a garnishee in possession, admitting the right of the absent debtor. It would be productive both of hardship and delay, to allow him to shift his ground, and to have now all the advantages of an original garnishee, denying the right of the absent debtor ; conceding, in such case, the correct practice to be, that the plaintiff in attachment should be the actor in the suggestion and issue

See 1 Rich., 460; 1 Strob., 244. An. Thompson, for the motion. Bailey, contra.

The judgment of the Circuit Court is affirmed.

Gantt, Richardson, O’Neall, and Butler, JJ., concurred; Evans, absent,