ne of the questions which was argued upon this appeal, and the only one which I deem it necessary to consider, is that the moving papers in this case did not show that any valid attachment had been obtained by the moving creditors, and that therefore this motion could not be entertained. In order that this motion may be made, the party moving must have acquired a lien upon or interest in the property attached. This fact must appear to the court, by competent evidence, before it can acquire jurisdiction to entertain this motion. The only proof in this action of the subsequent lien of the moving party is an affidavit by an attorney that an attachment was granted in an action in which the moving party was plaintiff against the property of the defendant herein; the grounds of the attachment do not appear. Whether the papers upon which it is granted conferred jurisdiction upon the judge granting the attachment, is not disclosed, and for aught that appears upon the record, the attachment of the moving party may have been founded upon the same facts upon which the plaintiffs herein claimed to maintain their attachment; and we may have presented to us as a result of this motion the vacation of an attachment by an alledged subsequent lienor, whose alleged lien is acquired by an attachment having less legal foundation than the one sought to be set aside. It seems to me that in the face of an objection raising the point, the party moved against has the right to insist upon strict legal proof of the subsequent lien, so that he can attack the same because of defects therein. It cannot be but that the j>arty moved, against has the right to question the validity of the subsequent lien, because the papers upon which it was granted do not confer jurisdiction upon the court precisely in the same manner as the alleged subsequent lienor is attempting to set aside the prior attachment.
It is well established that if the sheriff wishes to justify the taking of personal property under an attachment, he must show that the attachment is regularly issued by the production of the papers upon which it is founded ; so here, if the *202party claims a lien by virtue of process, he must show that the process was regularly issued.
It is claimed, upon the part of the respondent, that the case of Ruppert agt. Haug (87 N. Y., 141) is opposed to the view above expressed. Certainly language is used, in the opinion of the court, which sustains this claim; but an examination of the case shows that but one question was considered as to the status of the moving party, and that Avas that it did not sufficiently appear by the affidavit of the moving party that the tAvo processes were levied upon the. same projterty, which, was necessary to appear in order to give the moving party a standing in court. This is the only question in that regard decided by the court; and when they say that, in all respects, the affidavit of the moving party was sufficient to give him a standing in court, they had in mind only the point which had been raised as to the sufficiency of the affidavits, viz., the identity of the property levied upon.
In the case at bar, the objection is raised at once that there is nothing whatever to show that the court had any jurisdiction to issue the subsequent attachment, or that such attachment, when levied, gave the plaintiff therein any lien upon the defendant’s property which authorized them to make the motion to set aside the plaintiff’s prior attachment herein.
As far as I have been able to examine the adjudications,, the question now presented has never been raised; but it ^ seems to me that the plaintiffs in the process attacked, have a tight to claim that legal evidence of the existence of the subsequent lien shall be furnished before they can be called upon to justify their own proceedings, and that they may insist that the moving lienor shall show to the court that his process, at least, is regular, and has a better foundation than the process attacked.
The order should be reversed, with costs and disbursements.