Cruyt v. Phillips , 16 How. Pr. 120 ( 1858 )

By the Court.—Emott, J.

—An attachment in an action in this court, is not process by which a suit is commenced, but merely a provisional remedy. In this respect it is like an injunction. It has, therefore, been held that the statements in the affidavits on which an attachment is issued, are not jurisdictional facts; that the attachment is not void if they are insufficient, and that any defects in the affidavits may be supplied on a motion to set aside the attachment. The jurisdiction is conferred by the commencement of the suit; all afterwards is a question of regularity, or of the discreet exercise of power. In pleading an attachment, therefore, it is not necessary to show its regularity in order to show jurisdiction in the officer issuing it, and jurisdiction is all that need be pleaded.

Again: the attachment is an order of a judge acting as an officer of a court of general jurisdiction, and made under the jurisdiction of the court acquired by the commencement of a suit. Nothing but the commencement of the suit was needed to confer the jurisdiction, and as the suit in this case was in a court of general jurisdiction, it is - unnecessary even to allege this.

At all events, it is clear that as the jurisdiction of the officer to issue the attachment did not depend upon the truth or sufficiency of the facts - upon which the attachment was granted, but upon the jurisdiction of the court in which the suit was brought and the order made, it is enough to allege the pend-ency of such a suit. If it were otherwise, as the question of jurisdiction is certainly an issuable question, no allegation is necessary in a pleading which is not material and traversable. (Ensign a. Sherman, 14 How. P. R., 439.) Upon a traverse by the defendant of such an allegation as his demurrer calls for, then the sufficiency and truth of all the statements on which the attachment was allowed could be inquired into in this collateral action. That is, in an action on an attachment bond, the jurisdiction of the officer who granted the attachment must be stated and shown by pleading and proving the correctness of his decision in granting it. Such a rule of law or pleading would be intolerable.

The judgment of the City Court is correct and should be affirmed.