Raynolds v. Ray

Mr. Justice Elliott

delivered the opinion of the court concerning the validity of the attachment liens.

The vital question in this action is, Who has the better claim to certain real property located in Ohaffee county, Colorado, belonging to Hartzell Bros., copartners, etc., the plaintiff, Raynolds, their assignee, or the defendant, the sheriff of Ohaffee county, who levied attachments thereon for certain creditors of said copartnership? The assignment was executed in Ouster county on September 4, 1882. The writs of attachment were issued out of the county court of Ohaffee county, and the sheriff made and recorded his levy in Ohaffee county on September 5, 1882, a few hours before the articles of assignment were recorded in Ohaffee county; and neither he nor the attachment creditors had any notice of the assignment until after the recording of such levy. The judgments first rendered in these attachment cases were adjudged void for want of service of the writs of summons and attachment upon the defendants, and the sale of the property thereunder was perpetually enjoined by the district court of Chaffee county. Prior to this, however, these first judgments were vacated on motion of plaintiffs; and alias writs of summons and attachment were thereupon issued and duly served, January 17, 1883, and valid judgments were rendered thereon in February thereafter. To restrain the sale of the attached property under these latter judgments, the present action was brought by the assignee. These are the substantial facts. It is claimed in behalf of the assignee that the levy of the attachment writs on September o, 1882, was void for all purposes; and that, after vacating the first judgments, the defendant must not only be served with writs of summons and of attachment, but that there must be also a fresh levy of the attachment writs.

We cannot admit this claim of the plaintiff in error. “The requisites of an attachment of real estate are generally determined by statute.” Drake, Attachm. § 236. We are of opinion that by filing a copy of the writ of attachment, together with a description of the property to be attached, with the recorder of the county, a valid levy was made, and that a valid lien upon the property was thereby created. Code 1883, § 101; Emory v. Yount, 7 Colo. 107; Brown v. Tucker, 7 Colo. 30. To conclude otherwise is to disregard the purpose and largely destroy the efficacy of the attachment act. The main purpose of attachment proceedings is to secure a lien upon the property of a failing or fraudulent debtor; and. to say that such a debtor must in all cases be notified of the service of the attachment writ before a lien can be created is to give him the opportunity of perpetrating the very wrong, which the attachment may be intended to prevent. By the levy under a writ of attachment before the service thereof, the plaintiff acquires a provisional lien upon the property levied on; but, before a valid judgment can be rendered by which the attachment lien is preserved and made effective, there must be proper service of the summons and the writ of attachment. Moore v. Thayer, 6 How. Pr. 47.

Sections 99 and 101 of the code, construed together, do not seem to be inconsistent with these views. Section 99 provides that alias writs may issue unless the defendant deposit the amount, or give security by an undertaking in an amount sufficient to satisfy the demand and costs, or in amount equal to the value of the property which has been or is about to be attached. Section 101 specifies how the sheriff shall proceed to execute the writ if the undertaking mentioned in section 99 be not given by the defendant. A fair construction of these provisions would seem to justify the conclusion that the service of the attachment writ is required for the purpose, of enabling the debtor to deposit the money sued for, and thus prevent the lien from taking effect; or, if the lien already exists, thus to secure its dissolution; and also to enable him, in case he shall see fit so to do, to traverse and put in issue the matters stated in the affidavit of attachment. In a majority of cases, the levy of the writ will either precede or be made simultaneously with the service thereof. In some cases, the officer may serve the writ before he makes the levy, and in such cases the statute provides that, if the amount of the claim be de-, posited, the levy shall not be made.

There was nothing in the conduct of the plaintiffs in the attachment suits indicating bad faith, or any intention on their part to waive or .abandon their lien, nor were they guilty of laches in any of the proceedings. They acted with reasonable dispatch. True, they made a mistake in causing judgments to be entered before the summons and writs of attachment had been served; but when such mistake was discovered they proceeded with diligence to rectify the error by recalling the executions, vacating the judgments, and by suing out and serving alias writs of summons and attachment; so that, in less than six months after the levy of their writs of attachment, judgments were entered which are conceded to be in all respects regular and valid. Upon these judgments executions were at once issued; and the defendant sheriff was proceeding to sell thereunder the property attached when enjoined by the present action. We think there was no unreasonable delay in obtaining service of summons or of the writs of attachment upon the defendants, nor was there any unreasonable delay in obtaining judgment and execution.

We have noticed in this opinion only what we regarded as the principal assignment of error, for the reason that the dissenting opinion of the chief justice, filed herewith, satisfactorily presents the views of the court upon other points of the case.

For the reasons announced in this opinion the judgment of the district court is affirmed.

Affirmed.