dissenting. This is an appeal from an order of the Circuit judge, sitting at chambers, vacating an attachment. The grounds upon which this order was applied for were: “1. Because no summons was issued before the attachment was granted, as required by. the law of this state. 2. Because the note, upon which the said warrant of attachment was granted, was not then, and is not now, due.” As the record brought here furnishes no evidence whatever to sustain the second ground, and, as we are bound to assume, in the absence of any averment to the contrary, that “ all the papers upon which the court below acted in making the order,” are embraced in the record sent up to this court, as required by Bule I. of this court, we must *128assume that the Circuit judge granted the order to vacate the attachment on the first of the above-stated grounds, and it is only necessary to inquire whether that ground is well founded. The facts necessary to the determination of this question, as disclosed by the record, are as follows: On the 24th of July, 1878, the plaintiff obtained from the clerk of the Court of Common Pleas for Greenville county, a warrant of attachment, which, on the same day, was lodged with the sheriff and duly executed by the seizure of defendant’s property. The summons in the action bears date 24th of July, 1878, and by endorsement thereon ■appears to have been lodged in the sheriff’s office,on the 25th of July, 1878, the endorsement being in these words: “ Entered July 25th, 1878. P. D. Gilbreath, S. G. C.” The sheriff’s return shows that the summons was served on the 25th of July, 1878. Under this state of facts it seems to me that the Circuit judge was fully justified in granting the order to vacate the attachment. It is very clear that a warrant of attachment should not be granted before the issuing, but only at the time of issuing the summons, or- any time afterwards. Code, § 250. And it is equally clear, from the facts above stated, that the only evidence before the Circuit judge showed that the summons had not been issued until the day after the warrant of attachment was granted. It may be that the entry of the sheriff, endorsed on the summons, showing the date when it was entered in his office, is not conclusive evidence as to the time when the summons was issued, but in the absence of any other the Circuit judge was fully warranted in the conclusion that, from the evidence before him, the summons had not been issued until after the warrant was granted, and, therefore, the attachment should have been vacated. The suggestion that, under the provisions of Section 156 of the code, the summons may be served by any person not a party to the action as well as by the sheriff, and, therefore, for aught that appeared in this case, the summons might have been placed in the hands of some private person to be served on the day of its date, and afterwards lodged with the sheriff, loses its force when it is remembered that Section 122 of the code fixes the time of the commencement of an action at the time when the summons is served, or when it “ is delivered with the intent that it shall *129be actually served to the sheriff or other officer of the county in Avhich the defendants, or one of them, usually or last resided,” not Avhen it is delivered to any person not a party to the action. For Section 250 provides that “in an action arising on contract * * * the plaintiff, at the time of issuing the summons, or any time aftenvards, may have the property of such defendants or corporation attached in the manner hereinafter prescribed, * * * and for the purposes of this section an action shall be deemed commenced Avhen the summons is issued.” This shows that the design was only to allow the remedy by attachment “ in an action ” which had already been commenced, or which should be commenced at the time the attachment is applied for; and, reading this section in connection with Section 122, it is plain that the action cannot be regarded as commenced until the summons is served, or until it is delivered, not to any person not a party to the action, but “ to the sheriff or other officer of the county.” The reason for this distinction is obvious. For, while there may be no objection to fixing the time at which an action can be said to have been commenced at the time when the summons is served, even though such service should be made by a private person, there Avould be manifest impropriety, as opening the door to fraud, in providing that an action should be deemed commenced from the time the summons is delivered to a private person to be served, as that would be a fact known only to the plaintiff and such person, which the defendant would have no means of contradicting. But when the summons is delivered to a public officer to be served, the fact of such delivery, and the time Avhen it is made, becomes more open and notorious, and is accessible to the defendant as well as to any other interested. The objection raised by the appellant that the Circuit judge, sitting at chambers, had no authority to .grant the order in question is so fully and satisfactorily disposed of in the opinion of the Chief Justice that it is unnecessary to say anything upon that point. For the reasons above stated, I am unable to concur in the conclusion reached by the Chief Justice, and on the contrary, I think that the order of the Circuit judge should be affirmed.
Order vacated.