Woods v. Southern Life & Trust Co.

93 A. 579, 87 N.J.L. 202, 1915 N.J. LEXIS 190

• Court: Supreme Court of New Jersey
• Decided: March 1, 1915
• Status: Published

Opinion

The opinion of the court was delivered by

Swayze, J.

We think an attachment ought not to be quashed because of the fact that the sheriff attached property not owned by the defendant. The statute provides a special remedy where property attached is claimed by another and we find no precedent for quashing the attachment. The validity of the attachment does not depend on the ability of the officer to find property of the defendant, and if valid ' when issued it cannot be invalidated by a levy upon property of a third person. It is still a lien by virtue of section 8 of the act (Comp. Stat., p. 138) upon real estate even though the officer fails to attach the same and upon all real estate and interest in real estate acquired by the defendant in the county after the issue of the writ and before final judgment; and the court may order the clerk to amend the return to the writ by annexing thereto a description of such real estate. The provisions of the statute would be set at naught if the writ could be quashed because the only property attached bjr the officer was shown not to belong to the defendant.

The second ground on which the defendant relied is stronger. “Ordinarily,” as was said by the Supreme Court in Anspach v. Spring Lake, 58 N. J. L. 136 (at p. 138), “the validity of the claim should not be tried on a motion to discharge the defendant or his property from suit.” To do so, deprives the plaintiff of his right to trial by jury in case the claim is contested, and it would require a clear ease of abuse of the process of attachment to justify the court in interfering in this summary way.

We have, however, reached the conclusion that the judgment should be affirmed. The affidavits and arguments on the part of the plaintiff make it clear that the only question involved is one of law. He rests his case upon the theory that although the contract purported to be that of the defendant as receiver, it was really the contract of the defendant individually (to use the term that would be appropriate in case of a natural person), for the reason that as receiver'it was not authorized to act in the district of New Jersey. This contention rests upon the legal theory that before a receiver in bankruptcy can act outside of the district of his appointment, he must ° have an ancillary appointment in the district in which he acts. As we understand the rule of the United States Supreme Court, the law is settled to the contrary. Robertson v. Howard, 229 U. S. 254. That ease, it is true, involved the powers of a trustee in bankruptcy, but the reasoning of the court is quite as applicable to the case of a receiver. There is another difficulty in the plaintiffs case; he assumes that the trust company was itself acting: in fact, Scales alone acted in making the contract with the plaintiff and there is nothing to indicate that he was authorized to act for or to bind the trust company except in its official capacity as receiver. The case was fully presented in the court below, no question of fact was involved which would require submission to a jury, and we think that under such circumstances the court was justified in holding that the attachment could not be sustained. The judgment is affirmed, with costs.

For affw-mamce—The Chancellor, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, Bogeet, Vre-DENBURGII, WHITE, TeRHUNE, IÍEPPENHEIMEE, WILLIAMS, JJ. 14.

For reversal—bfone.