Woodmansee v. Rogers , 58 How. Pr. 98 ( 1879 )

Brady, J.

The attachment granted in this action cannot be sustained. The affidavit is deficient in facts to warrant it, and the motion made by the subsequent attaching creditor to vacate it must be granted. The Code, section 682, provides for such a proceeding by a person acquiring a lien upon the attached property at any time before the actual application of the attached property or the proceeds thereof to the payment of the judgment recovered in the action, and consequently a levy under an execution is not sufficient to defeat it. A levy is not an actual application of the property to the payment of the judgment. Before there can be an application, such as is contemplated, there must be a sale under the levy where the property seized is not money or its equivalent in fact, such as a bond of the United States or other security having a fixed monetary value. Actual means real, not formal, and involves a finality. For these reasons the motion is granted, but without costs.