Leak v. . Moorman , 61 N.C. 168 ( 1867 )

The attachment was issued 16 April, 1866, by a justice of the peace, returnable to the Fall Term of the Superior Court. The affidavit made by the plaintiff stated "that he (the plaintiff) hath good reason to believe that said Moorman hath removed himself out of the county, or is absent from the county or State, so that the ordinary process of law cannot be served on him." Bond was given in double the amount of the debt, was in the usual form and conditioned for the payment to the defendant of all damages he might incur from a wrongful suing out of the attachment.

The sheriff levied the attachment upon the defendant's land. (169) Upon its return to court the defendant appeared, filed a bail bond and pleaded in abatement to the affidavit and bond of the complainant, that the justice did not take and return such affidavit and bond as entitled the complainant to an attachment, and that the complainant did not make such affidavit or give such bond, etc.

Upon joinder of issue the plea was sustained and his Honor ordered the proceedings to be quashed.

Plaintiff appealed. In The State Bank v. Hinton, 1 Dev., 397, it was said by the Court, in speaking of the attachment law, that "there is no law in the statute book which more imperiously demands a strict construction; for the property of an absentee may be all sold upon an attachment wrongfully sued out, before he is apprised of the proceeding, and, if he then should discover that no bond and affidavit were taken and returned, his remedy must at best be very imperfect."

The plea in abatement, filed by the defendant in the present case, does not aver that no bond and affidavit had been taken and returned to court, as required by the Rev. Code, ch. 7, sec. 3; but that no such bond and affidavit had been taken and returned as entitled the plaintiff to sue out an attachment against the defendant. The defect is alleged to be in the affidavit, and it must be inferred from what was said by the Court inGorman v. Barringer, 2 Dev. Bat., 502; Evans v. Andrews, 7 Jon., 117; Cherry v. Nelson, ibid., 141, that a plea in abatement is the proper mode for taking advantage of it. It is manifest that the same policy which requires a strict construction of the statute in relation to (170) the taking and return of the affidavit and bond must likewise require that such affidavit and bond shall be sufficient in law to authorize the extraordinary remedy of attachment.

The alleged defects in the affidavit are: first, that the plaintiff does not swear positively that the defendant had removed himself out of the county, or was absent from the county and State, so that the ordinary process of law could not be served upon him; and, secondly, that such removal or absence is not stated in the terms required by the statute. As to the sufficiency of the first objection it is unnecessary for us to decide, because we think that the second is certainly fatal to proceeding. The first section of the act requires that a person, who proposes to take out an attachment against the property of a debtor, shall swear to either one of three things, to wit: that he hath removed or is privately removing himself out of the county; or absents himself from the county or State; or conceals himself, so that the ordinary process of law cannot be served on him.

Here it is the manifest that the removal from the county, or the absence from the county or State, or the concealment, must be an act of the party done for the purpose of avoiding the service of the ordinary process of the law; and that fact must be sworn to by the plaintiff. If he swear to two or more of these acts in the alternative, each must be substantially in the terms required by the statute; otherwise he might obtain an attachment upon a ground which the law has not sanctioned. Of this the present case furnishes a striking instance. The affidavit is that the defendant "hath removed himself out of the county, or is absent from the county and State, so that the ordinary process of law cannot be served upon him." Here it is apparent that neither of the alternative acts meet, either literally or substantially, the requirement of the statute. A mere removal from the county, without its being done privately, is not a sufficient cause for an attachment; nor is a mere absence from the county and State, without any design of evading process. (171) And yet the terms used, upon which the attachment was issued, do not imply either a wrongful removal or absence. This defect cannot be aided by the inference, "so that the ordinary process of law cannot be served on him." That inference must follow legitimately from the facts stated, and cannot supply the omission of the statement of the facts themselves.

It is obvious, therefore, that the affidavit is fatally defective, and the plea in abatement was on that account properly sustained.

PER CURIAM. Judgment affirmed.

Cited: Askew v. Stevenson, post, 289.