Lindau v. Arnold

Court of Appeals of South Carolina

Lindau v. Arnold

35 S.C.L. 290

DecidedJanuary 15, 1850

StatusPublished

This text of 35 S.C.L. 290 (Lindau v. Arnold) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lindau v. Arnold, 35 S.C.L. 290 (S.C. Ct. App. 1850).

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Opinion

Curia, per O’Neall, J.

In these cases I agree entirely with the Judge below. The defendant, at the issuing of the domestic attachment, was absent from the State. Under the Act of ’39, a magistrate, on the oath of the creditor,' may, in any one of four cases, issue an attachment: 1st, in sums of and under twenty dollars — where the debtor is absent from .the State ; 2d, where he is privately removing out of the District; 3d, where he absconds and conceals himself, so that the ordinary process of law cannot be served upon him ; 4th, where the creditor has just grounds to suspect, and does verily believe that his debtor intends to remove his effects. It is enough to say that this case is not under any one of these heads; for though the debtor was out of the State, yet the debt for which the attachment issued was for fifty-six dollars.

The attachment was, howevever, not issued against him as an absent, but as an absconding debtor. If it were necessary, it might be shewn that the attachment being issued on the alternative, that he was privily removing or absconding, would be irregular; but that is not necessary. For the ma-having no jurisdiction, it follows that his warrant of attachment is void. If it had been merely irregular, then indeed, third persons, garnishees or creditors, could not take advantage of the irregularity.

The domestic attachment being void, it follows that the levy under it is as nothing, and the levy of the foreign attachment must prevail. If the domestic attachment had been good, its levy would not have prevented a levy of the foreign attachment on the same property. The subsequent levy would have constituted a subsequent lien. Such a case is not one in which an attachment cannot be levied. When a fund is recovered in a Court of general or limited jurisdiction, and is actually or constructively in Court, and is to be paid over under its mandate, it is not the subject of levy.— The motion is dismissed.

Eichardson, Evans and Frost, JJ. concurred.

Wardlaw, J.

I agree that this domestic attachment was ' properly set aside; but I do not agree that a domestic attachment for more than $20 is necessarily void, where the defend[293]*293ant is out of the State, but is not notoriously so. A man who has just past the limits of the State, may be absconding, he may be about to remove his effects.

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Curia, per O’Neall, J.

In these cases I agree entirely with the Judge below. The defendant, at the issuing of the domestic attachment, was absent from the State. Under the Act of ’39, a magistrate, on the oath of the creditor,' may, in any one of four cases, issue an attachment: 1st, in sums of and under twenty dollars — where the debtor is absent from .the State ; 2d, where he is privately removing out of the District; 3d, where he absconds and conceals himself, so that the ordinary process of law cannot be served upon him ; 4th, where the creditor has just grounds to suspect, and does verily believe that his debtor intends to remove his effects. It is enough to say that this case is not under any one of these heads; for though the debtor was out of the State, yet the debt for which the attachment issued was for fifty-six dollars.

The attachment was, howevever, not issued against him as an absent, but as an absconding debtor. If it were necessary, it might be shewn that the attachment being issued on the alternative, that he was privily removing or absconding, would be irregular; but that is not necessary. For the ma-having no jurisdiction, it follows that his warrant of attachment is void. If it had been merely irregular, then indeed, third persons, garnishees or creditors, could not take advantage of the irregularity.

The domestic attachment being void, it follows that the levy under it is as nothing, and the levy of the foreign attachment must prevail. If the domestic attachment had been good, its levy would not have prevented a levy of the foreign attachment on the same property. The subsequent levy would have constituted a subsequent lien. Such a case is not one in which an attachment cannot be levied. When a fund is recovered in a Court of general or limited jurisdiction, and is actually or constructively in Court, and is to be paid over under its mandate, it is not the subject of levy.— The motion is dismissed.

Eichardson, Evans and Frost, JJ. concurred.

Wardlaw, J.

I agree that this domestic attachment was ' properly set aside; but I do not agree that a domestic attachment for more than $20 is necessarily void, where the defend[293]*293ant is out of the State, but is not notoriously so. A man who has just past the limits of the State, may be absconding, he may be about to remove his effects.

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Bluebook (online)

35 S.C.L. 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindau-v-arnold-scctapp-1850.