Lewenthall v. Mississippi Mills ( 1877 )

Campbell, J.,

delivered the opinion of the court.

When the issue made by a plea in abatement of an attachment traversing the ground on which the writ was obtained is found in favor of the defendant, the attachment is required to be dismissed. Code, sec. 1463. And it is erroneous in such case to proceed with the case as if .the suit ■ had been commenced by summons, as in ordinary actions.

The dismissal of the attachment is an end of the suit commenced by attachment. It is not .true that an attachment comprises two suits, where the defendant is summoned to answer, or appears and pleads, and that.the plaintiff may fail in his attachment and succeed in his action against the person. It is true that the law requires the officer executing the writ of attachment to summon the defendant, if he can be found; but he is summoned to answer the attachment, and if he answers that, so as to show that it was not rightfully sued out, he is not required to answer further.

If the defendant shall have been personally summoned, or shall appear and plead to the action, a personal judgment may be rendered against him in case of recovery by thé plaintiff; but if he has pleaded in abatement, and the issue has been found in his favor, the attachment will have been dismissed, and no judgment of any sort can be rendered against him .

If the defendant pleads in abatement of the attachment, he should not plead to the action, and cannot, without waiving his plea in abatement, until after trial of the issue on his plea in abatement; and if that be found against him, he may plead to the action. Code, sec. 1464. But if that issue be found in his favor, there is nothing to plead to, for dismissal of the attachment puts the case out of court.

The attachment is the commencement of the suit. Summoning the defendant is a mere incident to the writ of attachment. The defeat of the principal thing. carries with it the incident.

It is true that where the defendant has been personally summoned, or shall appear and plead to the action, “the suit assumes a double character,” in the sense that, if the plaintiff shall maintain his action, he may recover a personal judgment, even though he may not be entitled to subject the particular property seized under his writ, or the money or effects of the defendant in the hands of a garnishee. And this is what is meant in Bishop v. Fennerty, 46 Miss. 570, Holman v. Fisher, Exr., 49 Miss. 472, and Erwin v. Heath, 50 Miss. 795.

It has never been held that two distinct actions were instituted by one writ of attachment, and that one might fail and the other succeed. There is but one suit, and that is the attachment, and when it is disposed of by dismissal, for having been wrongfully sued out, that is a final disposition of the case, which is thereby out of court. Otherwise, he who has wrongfully sued out an attachment, and caused the defendant to be summoned to answer that writ, will, as the result of his wrong, be entitled to a trial on the merits at the first term of the court, and to a personal judgment against the defendant, if he can maintain his demand. No such result is contemplated by the attachment law, which provides for visiting on him who wrongfully resorts to the extraordinary remedy it affords, damages-for his wrongful act, and defeat in the advantage sought to be-acquired, by a dismissal of his suit, and leaving him where lm was before he sued out his attachment. Mense v. Osbern, 5 Mo. 544.

Judgment reversed, and judgment here vacating the judgment rendered by the justice of the peace on the demand, after the finding that the attachment was wrongfully sued out, and. dismissing the suit.