Moore v. Hamilton

7 Ill. 429

Opinion

The Opinion of the Court was delivered by

Treat, J.

*

On the 9th of June', 1845, Hamilton commenced an action of assumpsit in the Hancock Circuit Court against Moore. The return on the summons was “non cst inventus.” On the 17th of June, Hamilton filed a bond and affidavit, and under the 30th section of the “Jlct concerning attachments” approved February 12th, 1833, sued out an attachment in aid of the action of assumpsit. The writ was levied on a tract of land and some personal property. Notice of the pendency of the attachment was -regularly given by publication. At the October term 1845, the default of Moore was entered and the plaintiff’s damages assessed at $145-74, for .which amount a judgment was rendered, to be satisfied by a sale of the property attached. Moore was not personally served either with the process of summons or attachment; ñor did he ever enter his appearance. It does not appear that the action of assumpsit has been disposed of. Moore now prosecutes a writ of error for the reversal of the judgment.

The only material question presented by the record, is, whether, under the circumstances, the judgment was warranted. It was contended by the counsel for the defendant in error, that the action of assumpsit and the .attachment were distinct proceedings, and that the latter might be prosecuted, to final judgment without noticing the former. In the. Opinion of the Court, this position cannot be sustained. They constitute, in fact, but one case; the attachment is but an adjunct of the original case. It is to be entitled in the pending suit and be in aid thereof. It is only process and a part of the proceedings of the case originally commenced. By the service of the writ of attachment, the defendant is prevented from alienating or carrying away his estate during the pendency of the suit. If the action proceeds to judgment, and the attachment is not in the mean time dissolved, the plaintiff has the benefit of a general judgment against the defendant, and a specific lien.on the estate attached for its payment. Before the plaintiff can realize the fruits of the attachment by subjecting the property to sale, he must procure a service of the process in the original action, and obtain judgment therein. The action must be first disposed of. If it fails, the attachment goes with it. If the plaintiff cannot procure a service of process, his proper course is to discontinue his case, and sue out an original attachment. If this attachment can be regarded as an independent proceeding, one of the principal provisions of the attachment law could be easily evaded. The statute only allows the remedy by attachment to recover indebtedness growing out of contracts, express or implied, or ascertained and liquidated by a judgment. An- original attachment cannot be sued out for the purpose of recovering damages for a tort. By the 30th section, an attachment may be sued out in aid of an action of trespass. If the-attachment thus instituted could be carried on without reference to the pending action, the effect would be to permit the plaintiff to recover a judgment in attachment against a non resident for a personal injury. This xvould allow him to do indirectly by this kind of proceeding, what he cannot do directly by an original proceeding. The remedies by attachment are in derogation of the common law, and ought not to be extended by implication.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.

Judgment reversed.

Wilson, C. J., and Justices Lockwood and Catón, did not sit in this case.