On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Appellate Division dismissing an appeal by the plaintiff-appellant from an order of the Middlesex County Court quashing a writ of attachment. The Appellate Division stated it considered the question moot.
This court granted certification pursuant to R.R. 1:10-2(d). The respondent has filed no brief.
The action was instituted by attachment under N.J.S. 2 A:26-1 et seq. Plaintiff-appellant alleged the defendant-respondent was indebted to him in the sum of $199,490 arising out of certain contracts. On March 15, 1954 he secured a writ of attachment and a levy was made thereunder on life insurance policies of the defendant pledged with the National Bank of New Brunswick having a cash surrender value of about $50,000. These were the only assets of the defendant in New Jersey. Attempts were made to serve notice of the attachment upon the defendant personally
in New York but when these appeared unavailing an order of publication was obtained on April 12, 1954. R.R. 4:77-2.
On May 27, 1954 the defendant moved to quash the writ of attachment on the ground that proceeds of the life insurance policies were not subject to attachment. Subsequently, on July 28, 1954, the notice of motion was amended to add an additional ground that the attachment was invalid inasmuch as the sheriff had omitted to state an appraisal and valuation of the property attached. Following the receipt of this amended notice, and before any argument on the motion, the sheriff filed an amended return setting forth the appraisal and valuation of the property, together with an affidavit stating that one of the clerks in his office by inadvertence and clerical error omitted to insert the amount representing the appraised value of the inventory in the space provided therefor in the writ, and this mistake was made by a substitute clerk during vacation period. The affidavit further stated that so far as could be ascertained the value of the property attached was $50,000. There seems to be no question that this was a mere ministerial mistake on the part of the sheriff's office. This amended motion to quash the writ was made returnable and argued on August 10, 1954.
On September 24, 1954 the county judge by letter advised counsel that the motion to quash the writ was granted on the ground that the appraisement was not made in accordance with the rules and statute. An order quashing the writ was entered on September 27, 1954, and admittedly without notice to the plaintiff as required under R.R. 4:55-1.
The court's letter of September 24, 1954 was not received by appellant's attorney until September 27, 1954. On that day he was arguing a case before this court in Trenton and the following two days, September 28 and 29, 1954, were religious holidays which he observed. He states that this letter first came to his attention on the morning of September 30, 1954, and on the same day he moved for an order vacating the order quashing the writ and staying the proceedings pending an appeal to the Appellate Division. An ad interim stay was signed on October 6, 1954, and an order
granting the stay pending appeal was signed November 13, 1954, but somehow in the interim between September 27 and October 6, 1954, defendant through his attorney secured the release of the insurance policies by the bank and they were removed from the State. Despite the fact the property was in custodia legis and constructively in the possession of the sheriff as attaching officer, Austin v. Wade, 3 N.J.L. 997 (Sup. Ct. 1813); Melville v. Brown, 16 N.J.L. 363 (Sup. Ct. 1838), the bank apparently released the property without consulting the sheriff, and the property was removed from this State.
With affairs in this posture on the appeal from the order quashing the writ the Appellate Division stated: "It appears that on the quashing of the writ, the defendant removed from the State, the property attached. The appeal therefore raises an entirely moot question." With this conclusion we are not in accord, nor are we likewise in ...