Houston v. . Porter , 32 N.C. 174 ( 1849 )

By sec. 13, ch. 6, Rev. Stat., power is given to a single magistrate out of court to issue an attachment in (175) all cases where by the law he has jurisdiction of the sum demanded, and it directs that it shall be made returnable before some justice on or before thirty days after the date thereof. In this case the attachment is defective and void. After directing the officer to attach so much of the defendant's property as may be sufficient to satisfy the plaintiff's debt, the writ proceeds: "and such estate so attached in your hands to secure or so provide that the same may be liable to further proceedings thereupon, to be had in relation thereto, according to law, so as to compel the said Hugh G. Porter to appear and answer to the above complaint, when and where you shall make known how you have executed this attachment." The attachment is not returnable on any particular day, nor before any justice or court, nor within thirty days after its teste. It is an absolute nullity. It is an original process without any return day. To this effect is the case of Clark v. Quinn, 27 N.C. 176, and, likewise, the case which preceded it, of Washington v. Saunders, 13 N.C. 346. The latter was decided upon common-law principles. Both at common law and under the statute, the attachment in this case is void; none of the defects being of a nature to be cured by the appearance of the defendant. As the attachment is void, a judgment on it would not protect the garnishee against his creditor, and he has therefore a right to make the objection.

PER CURIAM. Judgment affirmed.

Cited: Symons v. Northern, 49 N.C. 243.

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