Union Buffalo Mills Co. v. Thesmar

81 S.E. 181, 98 S.C. 1, 1914 S.C. LEXIS 1

• Court: Supreme Court of South Carolina
• Decided: March 24, 1914
• Docket: 8766
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an attachment proceeding. The plaintiff claims that the defendant owes it a debt, to wit, $1,274.78; that the defendant is a nonresident of this State, and that he has propert)'' in this State, to- wit, $2,973.80 in the hands of Nicholson Bank & Trust Company, of Union, S. C. The plaintiff took out attachment proceedings, and attached $1,500 of this money. The National Bank of Savannah served a formal notice that it is the owner of this fund. The “defendant gave notice of a motion before his- Honor, Judge T. S.. Sease, to- dissolve the attachment.” The defendant’s motion was based upon the claim that the National Bank of Savannah was the owner of the fund and not the defendant. Judge Sease refused to set aside the attachment, and from his order the defendant appealed upon three exceptions. Neither of these exceptions legitimately arise in this case. The initial question is, Can a defendant, who- claims neither possession nor title, move to set aside an attachment? He cannot. Metts v. P. & A. Life Insurance Co., 17 S. C. 122. Mr. Drake, the highest authority on ■'attachment proceedings, says that “the defendant debtor cannot move to dismiss an attachment on the ground that the property attached did not belong to him.” The question is between the attaching plaintiff and the intervening claimant.

The, appeal-is dismissed.

Mr. Justice Gage did not sit in in this case.