Franke v. Havens

McLennan, P. J.:

The affidavits wholly fail to state facts sufficient to give the judge jurisdiction to issue the warrant of attachment. Subdivision 2 of section 2906 of the Code of Civil Procedure provides that in order to entitle the plaintiff to a warrant of attachment he must show by affidavit “ if the defendant is a natural person and a resident of the State, that he has departed or is about to depart from the county where he last resided with intent,to defraud his creditors or to avoid the service of a summons; or keeps himself concealed with the like intent; or * * * that he * * * has removed or is about to remove property from the county where the defendant being a natural person last resided, * * * or from the county in which the action is brought, with intent to defraud his * * * creditors; or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent.”

The affidavits upon which the warrant of attachment was granted wholly fail to establish any such facts. The first affidavit, that of Robert McDonald, simply states that the defendant told the affiant that he, the defendant, was going to leave Buffalo and going to St. Louis and that the defendant had left Buffalo. The next affidavit, that of Arthur McDonald, simply states that the defendant told the affiant that he was packing his household goods and was about to leave Buffalo ; that he was going to Baltimore and then possibly to Atlantic City. The third affidavit, that of John F. Fay, shows that the affiant went to the defendant’s place and was informed by an employee that he had gone to Baltimore and from there was going to Washington and then to St. Louis. There is not a word in any of the affidavits to indicate that the departure from Buffalo by the defendant was not temporary, made in the regular course of business or for pleasure. There is no suggestion in the affidavits that the defendant left Buffalo with intent to defraud his creditors, for the purpose of avoiding service of process or to remove his property beyond the jurisdiction of the court.

We think it must follow as matter of law that the judge of the Municipal Court had no jurisdiction to issue the warrant of attachment in question. The defendant was indebted to the plaintiff for a small amount, and the plaintiff had the legal right to bring an action in the Municipal Court to recover such amount. Being thus concededly indebted, the defendant properly appeared generally in the case and thus gave the judge jurisdiction of the action, although personal service of the summons upon him had not been made. Such appearance was made by the defendant on the return day of the summons, and the case was adjourned to a subsequent day, to wit, the 7th day of July, 1904, at which time the defendant asked leave to withdraw his general appearance and for leave to appear specially to make a motion to vacate the attachment. The motion to withdraw the general appearance was denied and the case was adjourned from time to time until the 25th day of July, 1904, at which time the parties again appeared and the defendant made a motion to dismiss the attachment, which was denied. The case was further adjourned until the 26th day of July, 1904, at which time proofs were heard and judgment rendered as above stated.

We think the motion to vacate the attachment was seasonably and properly made. Section 2916 of the Code of Civil Procedure jirovides: “A defendant whose property has been attached, may upon the return of the summons apply to the justice who issued the warrant of attachment to vacate or modify it or to increase the plaintiff’s security. Such an application may be founded upon the papers upon which the warrant was granted * * *. The justice may, upon the return of the summons or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion if he deems the papers'upon which it was granted insufficient to authorize it.” Section 2917 provides: “ Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action where the defendant has appeared generally in the action.”

It would seem that the defendant proceeded in accordance with these provisions of the Code of Civil Procedure. Although not personally served with the summons he appeared generally in the action, which gave the justice jurisdiction, and he moved to vacate the attachment, which, as we have seen, the justice had no jurisdiction to grant. In view of the provisions of section 2916 of the Code of Civil Procedure we think it cannot he held that the defendant had waived his right to have the warrant of attachment vacated because he failed to move upon the day when the summons was returnable. It was the duty of the judge to have granted such motion whenever made, or upon his own motion when his attention was called to the fact that the affidavits upon which it was granted did not state facts sufficient to give him jurisdiction to grant the same.

We think the affidavit of Henry L. Marshall, which appears in the printed record, to the effect that there were negotiations in respect to adjusting the suit, and that the defendant agreed to pay a certain amount upon the indebtedness upon condition that the goods attached should be released, and that the goods were released by reason of said agreement, has no bearing or effect upon this controversy. Such affidavit, so far as appears by the return of the Municipal Court, was not presented to the court and was not considered upon the determination of the motion to vacate the attachment.

We conclude that the judgment, in so far as it refuses to vacate the warrant of attachment which was levied upon the goods and chattels of the defendant, should be reversed, and that the warrant of attachment should be vacated, with costs of this appeal..

All concurred, except Williams, J., who dissented, and Stover, J., not sitting.

Judgment reversed and warrant of attachment vacated, with costs.