Hambley v. . White , 192 N.C. 31 ( 1926 )

after stating the case: We have no hesitancy in affirming the judgment in so far as it requires the First National Bank of Jackson, Tenn., to come in and litigate its claim, if any it has, to the funds held under attachment in the present proceedings. Temple v. Hay Co., 184 N.C. 239;Freeman v. Howe, 65 U.S. 450.

The general rule is, that one claiming a paramount right to property taken in attachment, which, if valid, would defeat the plaintiff's suit, must assert such right in the court first acquiring jurisdiction over the property. Taylor v. Carryl, 61 U.S. 583; Peck v. Jenness, 48 U.S. 612;Metzner v. Graham, 57 Mo., 404.

Likewise, in this jurisdiction at least, where several attachments have been levied on the same property, under processes issued by a number of Superior Courts, each having general and concurrent jurisdiction over the matter, which must inevitably result in a contest among the different creditors as to their respective rights of priority, we think it is within the power of the court, first acquiring jurisdiction of the property by seizure and attachment, to require the questions of priority, likely to arise among the attaching creditors, to be determined in that court.Patrick v. Baker, 180 N.C. 588; Metzner v. Graham, supra; Bank v.Steinberg, 44 Mo. App. 401. And in regard to such creditors, the law is, first in time of attachment, first in right, so far as the property attached is concerned (Kittredge v. Bellows, 7 N. H., 428; Peck v. Jenness,supra), except where two or more attachments are delivered to the sheriff at the same time, served simultaneously on the same property, and judgments rendered in favor of both or all of such creditors, the funds remaining after satisfaction of all prior attachments will be applied pro rata, when they are insufficient to pay the judgments of the simultaneously attaching creditors in full. Freeman v. Grist, 18 N.C. 217.

In an attachment of personal property, the sheriff, upon the service of the writ, takes possession of the property attached, and thus acquires a special interest therein, which he may enforce for the protection of the rights of all concerned. Peck v. Jenness, 48 U.S. 612. Subsequent attachments may be levied on the same property by the same sheriff, and where there are several attachments, the attaching creditors acquire a right to priority of satisfaction, so far as the property attached is concerned, not by right of priority of judgment, but by right of priority of attachment. C. S., 807; Granite Co. v. Bank, 172 N.C. 354; Bank v.Watson, 187 N.C. 107; Norman v. Hallsey, 132 N.C. 6; Poole v. Symonds,1 N. H., 292; Clarke v. Morse, 10 N. H., 238.

Attachment partakes of the nature of an execution before judgment(Johnson v. Whilden, 166 N.C. 104); and as the lien begins with the levy of the attachment (McMillan v. Parsons, 52 N.C. 163), it is subject to all others of prior date and superior to those of subsequent date. Moreheadv. R. R., 96 N.C. 362. As remarked by Mr. Justice Matthews in Freedman'sS. T. Co. v. Earle, 110 U.S. 717, "It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority." See, also, Kittredge v. Emerson, 15 N. H., 227, and Kittredge v.Warran, 14 N. H., 509, where the whole subject of attachment is fully considered by the New Hampshire Superior Court of Judicature.

This, however, need not deprive the parties of the right to proceed to judgment in the courts of their respective counties, and in such actions, those who claim the property by superior or paramount title should come in as interveners or be brought in as defendants, so that their claims may be properly adjudicated. C. S., 829; Patrick v. Baker, 180 N.C. 588; Evansv. Aldridge, 133 N.C. 378; In re Snell, 125 Fed., 154.

Speaking to a similar situation in Peck v. Jenness, supra, Mr. JusticeGrier observed that, "where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. . . . For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other." See, also, Metcalf v. Baker, 187 U.S. 165, and White v. Schloerb, 178 U.S. 542.

And so, the garnishee, in each succeeding case, should set up as a defense, either absolute or pro tanto, that a prior attachment has been levied on the property in its hands belonging to the principal defendant (12 R. C. L., 835; 28 C. J., 286) and should also notify any adverse claimant to come in by intervention and make good its claim to the property attached. Temple v. Hay Co., 184 N.C. 239; Garity v. Gigie,130 Mass. 184; 12 R. C. L., 825. But the first court of general jurisdiction taking possession of the property may hold it and disburse the funds according to the respective rights of the parties as they may be made to appear in that court, on the question of priority. Lemly v. Ellis,143 N.C. 200; Bank v. Steinberg, supra. If this course be not pursued in the instant case a serious wrong may be inflicted on the Bank of Alexander, the garnishee, as a portion of the attached funds is represented by bond given only in the present proceeding. Martin v. McBryde,182 N.C. 175; Patrick v. Baker, 180 N.C. 588; 28 C. J., 303.

We have not overlooked the learned opinion of Mr. Justice Miller in Buckv. Colbath, 70 U.S. 334, wherein he classifies the different writs, or processes of the court, and points out with particularity the distinction between replevin and attachment; nor is the position here taken necessarily at variance with what is said in that opinion. Sometimes, in a case of first impression, the court finds it necessary to mold its decrees to meet the exigencies of the particular case. McNinch v. Trust Co., 183 N.C. 33.

As herein modified and interpreted, the order appealed from will be upheld.

Modified and affirmed.