Yardley v. Yardley

The opinion of the court was delivered by

Vredenburgh, J.

This is a certiorari brought to set aside proceedings in attachment in the Mercer Circuit. The attachment was issued at the suit of the said John Yardley against Cortlandt Yardley, on the sixth day of April, 1866, directed to the sheriff of the county of Mercer.

To this writ the sheriff made the following return, viz.: “By virtue of the annexed writ, I did, on the thirteenth day of April, 1866, go to William C. Howell’s office, in the city of Trenton, and did then and there declare, in the presence of John G. Stout, a credible, person, that I attached the rights and credits, moneys and effects, goods and chattels, lands and tenements of Cortlandt Yardley, the defendant, at the suit of John Yardley, and did, with the assistance of said Stout, a discreet and impartial freeholder, make a just and true inventory and appraisement of the property and estate of the defendant so by me attached; which said inventory and appraisement, dated and signed by myself and the said Stout, I have annexed and returned with the writ.”

To this is appended the following inventory, viz.: “ A just and true inventory and appraisement of all the property and estate of Cortlandt Yardley, at the suit of John Yardley, made by George Brearley, sheriff, with the assistance of John G. Stout, a discreet and impartial freeholder, this thirteenth day of April, 1866, to wit, nine hundred dollars, being the proceeds of a house and lot sold, which Cortlandt Yardley held in trust for Hannah Yardley, his wife, now in the hands of William C. Howell.”

The proceedings went on in the said Circuit Court, until after the first calling and default had been entered, and auditors appointed, when the proceedings were arrested by this certiorari.

The view we have taken of the case makes it unnecessary to consider whether a certiorari can be brought in this stage of the proceedings. The reason assigned for setting aside the proceedings is, that it appears by the sheriff’s return and inventory, that no property of the defendant was attached, and that consequently the Circuit Court had no jurisdiction to proceed in the cause.

It is insisted that the inventory shows that the property attached was the property of the defendant’s wife, and not the property of the defendant himself.

The property attached is described in the return and inventory, as follows: “A just and true inventory and appraisement of all the property and estate of .Cortlandt Yardley, to wit, nine hundred dollars, being the proceeds of a house and lot sold, which Cortlandt Yardley held in trust for Hannah Yardley, his wife, now in the hands of William C. Howell.”

Now this appears to me to be an averment that the nine hundred dollars belonged to the husband, and not to the wife, and that which is subsequently added only informs us where the husband got it. The return avers, indeed, that the house and lot had, at one time, belonged to the wife, but it does not show that these proceeds of the sale of the said house and lot had not, by some legal means, become, before the service of the attachment, the property of the husband. The legal import of the language of this return is, that the nine hundred dollars, wherever it came from, was, at the time of the serving the attachment, the property of the husband. If the nine hundred dollars was, in fact, the property of the wife, and not of the husband, when the writ was served, there is no difficulty in the wife protecting herself in the proceedings against the garnishee.

The court, therefore, declines to set aside the proceedings in attachment, and orders them to be remitted to the said Circuit Court, to be proceeded thereon according to law.