Page images
PDF
EPUB

CHAPTER XVIII.

ATTACHMENTS AND GARNISHMENT.

By sec. 915, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684, the plaintiff in common-law causes is entitled to the same remedies by attachment or other process against the property of the defendant as are now (act June 1, 1872) provided by the laws of the State in which the court is held. And Federal courts may from time to time by general rules adopt such State laws as may be in force in relation to attachments and other process in the States in which the court is held: Provided, that similar affidavits or proof, and similar securities as required by State laws shall be first furnished by the party seeking the attachment. Citizens' Bank v. Farwell, 6 C. C. A. 24, 12 U. S. App. 409, 56 Fed. 570. We see, then, the State laws control the Federal courts in issuing attachments, which existed in 1872, or State laws enacted since then and adopted by the Federal courts by rule. The remedy should be further applied in accordance with the construction placed upon State laws by State decisions. Third Nat. Bank v. Teal, 4 Hughes, 572, 5 Fed. 503. See Mather v. Nesbit, 4 McCrary, 505, 13 Fed. 872; Bates v. Days, 5 McCrary, 342, 17 Fed. 167; Crary v. Dye, 208 U. S. 516, 52 L. ed. 597, 28 Sup. Ct. Rep. 360; Gumbel v. Pitkin, 124 U. S. 132, 31 L. ed. 374, 8 Sup. Ct. Rep. 379.

The adoption of the rule need not be in writing; a uniform practice becomes an established rule, and the presumption of adoption prevails. Citizens' Bank v. Farwell, 6 C. C. A. 30, 12 U. S. App. 419, 56 Fed. 570; Logan v. Goodwin, 43 C. C. A. 658, 104 Fed. 490.

Causes of Action.

Causes of action on which the attachment is based follow the State laws in which the court issuing the attachment is sitting. Seeley v. Missouri, K. & T. R. Co. 39 Fed. 253; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391;

Auerbach v. Internationale Wolfram Lampen Aktien Gesellschaft, 177 Fed. 458, 461. In matters of attachment the Federal and State courts are courts of co-ordinate jurisdiction, administering the State laws. Brooks v. Fry, 45 Fed. 776.

Affidavits for Attachment.

They must show one or more of the grounds authorized by State statutes, and must be made by one authorized by the State statute to make them. Johnson v. Johnson, 31 Fed. 700; Société Foncière v. Milliken, 135 U. S. 304, 34 L. ed. 208, 10 Sup. Ct. Rep. 823; Glidden v. Whittier, 46 Fed. 437; Bigelow v. Chatterton, 2 C. C. A. 402, 10 U. S. App. 267, 51 Fed. 614. But the proof of all the grounds stated may not be necessary. Strauss v. Abrahams, 32 Fed. 310.

Affidavit may be Amended.

Though the State practice does not allow an amendment, the Federal courts permit it under section 948, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 695, authorizing the amendment of any process before them, or returnable to them, but with the modification that the defect and amendment thereof will not injure or prejudice the other party. Wolf v. Cook, 40 Fed. 432; Booth v. Denike, 65 Fed. 47; Erstein v. Rothschild, 22 Fed. 61.

And under any of the conditions permitted by State laws authorizing amendments, the Federal courts will follow them. Salmon v. Mills, 1 C. C. A. 278, 4 U. S. App. 101, 49 Fed. 333; Fleischner v. Pacific Postal Teleg. Cable Co. 55 Fed. 739; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391; Fitzpatrick v. Flannagan, 106 U. S. 648, 27 L. ed. 211, 1 Sup. Ct. Rep. 369. For example, you may amend any procedure in attachments, as defect in proof of summons, by publication, even after judgment (Bigelow v. Chatterton, 2 C. C. A. 402, 10 U. S. App. 267, 51 Fed. 614-620), where the State laws permit amendments nunc pro tunc.

The Bond.

The bond must be in amount required by the State law. Blue Grass Canning Co. v. Stewart, 99 C. C. A. 159, 175 Fed. 538541; Fleitas v. Cockrem, 101 U. S. 301, 25 L. ed. 954. Construction of, follows State laws. Fidelity & D. Co. v. L. Bucki & Son Lumber Co. 189 U. S. 135, 47 L. ed. 744, 23 Sup. Ct. Rep. 582. The bond may be amended under the Federal law. Bumberger v. Gerson, 24 Fed. 257.

The Writ of Attachment and Lien.

The form and issuing the writ conforms to the State practice, but an amendment of the writ and petition increasing the amount was held not to dissolve the attachment. Cutler v. Lang, 30 Fed. 173.

The Lien.

The lien is created by the levy, and when personal property is attached it must be taken into custody by the marshal. Adler v. Roth, 5 Fed. 895; Coulson v. Penhandle Nat. Bank, 4 C. C. A. 616, 13 U. S. App. 39, 54 Fed. 855, 858. See Dudley v. Lamoille County Nat. Bank, 14 Fed. 217; Richmond v. Brookings, 48 Fed. 241; People's Sav. Bank & T. Co. v. Batchelder Egg Case Co. 2 C. C. A. 126, 4 U. S. App. 603, 51 Fed. 131137. But it is governed by State laws. Hankinson v. Page, 31 Fed. 184.

Property Subject to the Attachment.

The property subject to levy is controlled by State laws (Thompson v. Baker, 141 U. S. 648, 35 L. ed. 889, 12 Sup. Ct. Rep. 89; Coulson v. Penhandle Nat. Bank, 4 C. C. A. 616, 13 U. S. App. 39, 54 Fed. 858; Bigelow v. Chatterton, 2 C. C. A. 402, 10 U. S. App. 267, 51 Fed. 614; Richmond v. Brookings, 48 Fed. 241; Montgomery v. McDermott, 43 C. C. A. 348, 103 Fed. 801; Simonds v. Pearce, 31 Fed. 137; Hankinson v. Page, 31 Fed. 185); does not reach exemptions, though property

fraudulently conveyed (Naumberg v. Hyatt, 24 Fed. 898); and not property of an equitable nature (Shiel v. Patrick, 8 C. C. A. 440, 20 U. S. App. 407, 59 Fed. 992); nor when in custodia legis (Corbitt v. Farmers' Bank, 114 Fed. 602; Henry v. Gold Park Min. Co. 5 McCrary, 70, 15 Fed. 649), as money in hands of marshal (Clarke v. Shaw, 28 Fed. 356).

Cannot Issue against National Bank.

U. S. Rev. Stat. sec. 242, U. S. Comp. Stat. 1901, p. 3517, forbids the issue of an attachment, execution, or injunction against a national bank before judgment. Pacific Nat. Bank v. Mixter, 124 U. S. 726, 727, 31 L. ed. 570, 571, 8 Sup. Ct. Rep. 718; Garner v. Second Nat. Bank, 66 Fed. 371.

Service of the Writ.

All requirements of the State law should be followed.

Return of the Writ.

State laws will control where no prejudice will result (Mays v. Newlin, 143 Fed. 574); but the time in which the writ is to be returned under State laws will not be followed when it may unduly burden the administration of justice in the Federal courts (Gokey v. Boston & M. R. Co. 130 Fed. 993).

Sufficiency of the Return.

While acts and steps taken in levying the writ according to the laws of the State should be stated, yet if not stated, it will be presumed that the marshal followed the requirements of the laws. Griffin v. American Gold Min. Co. 68 C. C. A. 637, 136 Fed. 69.

Conflicting Attachments and Priorities.

The court from which the attachment issues which is first levied acquires jurisdiction over the property attached (Adler

v. Roth, 5 Fed. 895); but this does not prevent the levy of other attachments issuing out of the same court, or the constructive levies of attachments issuing out of other courts, State or Federal (Bates v. Days, 5 McCrary, 342, 17 Fed. 167; Brooks v. Fry, 45 Fed. 776; Naumburg v. Hyatt, 24 Fed. 898).

The court having jurisdiction of the attached property or the proceeds if ordered sold may, without reference to citizenship of parties, entertain interventions and determine priorities in distributing the fund. Gumbel v. Pitkin, 124 U. S. 132, 31 L. ed. 374, 8 Sup. Ct. Rep. 379; Fountain v. 624 Pieces of Timber, 140 Fed. 381; Hatcher v. Hendrie & B. Mfg. & Supply Co. 68 C. C. A. 19, 133 Fed. 267; Central Trust Co. v. Worcester Cycle Mfg. Co. 128 Fed. 483; see Re John L. Nelson & Bro. Co. 149 Fed. 594; Dooley v. Hadden, 179 U. S. 646, 45 L. ed. 357, 21 Sup. Ct. Rep. 259; Watson v. Bonfils, 53 C. C. A. 535, 116 Fed. 157.

Where conflicting attachments come up by removal from the State courts, the Federal court will distribute the fund in the same way as would have been done by the State court. Bankers' & M. Teleg. Co. v. Chicago Carpet Co. 28 Fed. 398.

Dissolution of the Attachment.

By section 933, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 689, attachments shall be dissolved when any contingency occurs under which, according to the laws of the State in which the court is held, such attachments would be dissolved on like process instituted in the courts of the State. But nothing shall interfere with any priority of the United States on the payment of debts. Neufeld v. Neufeld, 37 Fed. 560; Schwartz v. H. B. Claflin Co. 9 C. C. A. 204, 13 U. S. App. 707, 60 Fed. 676; Central Trust Co. v. Worcester Cycle Mfg. Co. 114 Fed. 659; Salmon v. Mills, 1 C. C. A. 278, 4 U. S. App. 101, 49 Fed. 333.

We have seen that the grounds and procedure for dissolution are controlled by State laws. Blount v. America Lead & Baryta Co. 88 C. C. A. 574, 161 Fed. 714; Glidden v. Whittier, 46 Fed. 437; Lafollye v. Carriere, 24 Fed. 346; Feurer v. Stewart, 82 Fed. 294; Jenks v. Richardson, 71 Fed. 365.

« PreviousContinue »