On appeal from Superior Court, Law Division, whose opinion is reported in 58 N.J. Super. 398.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This appeal involves the validity of a writ of attachment issued in connection with a suit initiated in the Superior Court, Law Division. The writ, which had been issued at plaintiff's behest against property owned by the defendants, was vacated by the trial court upon defendants' motion. This order was made on the ground that the affidavits filed on behalf of plaintiff, one to obtain an order of the trial court allowing the writ to issue, R.R. 4:77-1(a), and another on behalf of the plaintiff in opposition to defendants' motion to vacate, see R.R. 4:77-3 permitting submission of additional affidavits at any stage of the proceedings, failed to state a cause of action against defendants. From this order the plaintiff prosecuted an appeal to the Superior Court, Appellate Division, but prior to argument in that court and while the cause was pending there, we certified it on our own motion.
The attachment statute, N.J.S. 2 A:26-1 et seq., is the sole source of an attachment remedy in this State. The procedure to be followed in pursuit of that remedy is determined by rule, R.R. 4:77, but we must ascertain from the statute whether there existed a right to the writ. The statute provides:
"An attachment may issue out of the superior court, any county court or county district court upon the application of any resident or nonresident plaintiff against the property, real and personal, of any defendant in any of the following instances:
a. Where the facts would entitle plaintiff to an order of arrest before judgment in a civil action; and in such cases the attachment may issue against the property of a female, or of a corporation in the same manner as though the defendant would be liable to arrest in a civil action, except that, in actions founded upon a tort, an attachment shall not issue against a corporation upon which a summons can be served in this state; or
b. Where the defendant absconds or is a nonresident of this state, and a summons cannot be served on him in this state; but an attachment shall not issue hereunder against the rolling stock of a common carrier of another state or against the goods of a nonresident in transit in the custody of a common carrier of this or another state; or
c. Where the cause of action existed against a decedent, which survives against his heirs, devisees, executors, administrators or trustees, and there is property in this state which by law is subject to plaintiff's claim; but no action of attachment may be brought hereunder against the heirs unless they, or some of them, nor against the devisees unless they, or some of them, nor against the executors unless they, or some of them, nor against the administrators unless they, or some of them, nor against the trustees unless they, or some of them, are unknown or nonresident and cannot be served with a summons in this state; or
d. Where plaintiff has a claim of an equitable nature as to which a money judgment is demanded against the defendant, and the defendant absconds or is a nonresident and a summons cannot be served upon him in this state; or
e. Where the defendant is a corporation created by the laws of another state but authorized to do business in this state and such other state authorizes attachments against New Jersey corporations authorized to do business in that state.
For the purposes of this section a summons can be served upon a person in this state where service can duly be made upon someone on his behalf in the state, but not where service may be made only by publication in the state." N.J.S. 2 A:26-2
Plaintiff in the instant case claimed the right to the writ under the terms of subdivision b quoted above. It appears from that portion of the statute that a writ may be issued at the instance of a plaintiff against the property of a nonresident defendant when the latter cannot be served with summons in this State. It is not expressly stated in N.J.S. 2 A:26-2, subd. b, or elsewhere, see R.R. 4:77, that a plaintiff proceeding under N.J.S. 2 A:26-2, subd. b must, in order to be entitled to the writ, state in his affidavit
a cause of action against the defendant, the nature and details of which must be specified.
The adjective problem presented by this situation is whether a plaintiff seeking attachment under N.J.S. 2 A:26-2, subd. b must, in his affidavit filed to secure the writ, state a prima facie cause of action against the defendant in attachment. In other words, is the defendant in attachment entitled to prevail on a motion to discharge the writ issued under N.J.S. 2 A:26-2, subd. b if the plaintiff's affidavits fail to state a cause of action against the defendant?
Attachment originated as one of the customs of the merchants of London which later came to use in the courts of that city and were adopted and modified by statute. Goldmark v. Magnolia Metal Co., 65 N.J.L. 341 (Sup. Ct. 1900). It was used in certain instances as an original process, 1 Tidd's Practice 109 (3 d Amer. ed. 1840); see Watson v. Noblett, 65 N.J.L. 506, 607 (Sup. Ct. 1900), but an early Practice Act adopted in this State, the act of February 14, 1799, Paterson's Laws, p. 355, eliminated this form of its use for a time. Watson v. Noblett, supra. As a remedy against debtors in instances where other creditors' remedies would be ineffective, however, the writ of attachment was early recognized and constantly employed in New Jersey. By an "Act of West Jersey" adopted in 1683 (quoted in LeWine, Attachment in New Jersey 761 (1936)), it was provided that three magistrates "upon just ground and suspicion of the parties [ i.e., debtors] absconding, and complaint of any of the creditors" were entitled to secure the absconder's goods and estates located in the Province for the benefit of the complaining creditor and other creditors who might apply. By the statute of December 16, 1748, "enacted by the Governor, Council and General Assembly" of the Colony of New Jersey, it was provided that a writ of attachment should issue on the applicant's oath that "the Defendant absconds himself from his creditors, that he is not (to the plaintiff's Knowledge or Belief) Residing in this Colony" at the time of the application for the writ,
and that the debt was more than what was cognizable before a Justice of the Peace.
The next important statute dealing with the subject of attachments was an act of March 8, 1798 (Paterson's Laws, p. 296), the first section of which provided:
"* * * That if any creditor shall make oath or affirmation before any judge of any of the courts of record of this State, or justice of the peace of any county in the same, that he verily believes, that his debtor absconds from his creditors, and is not, to his knowledge or belief, resident in this State at that time, then it shall be the duty of the clerk of the supreme court, or of the court of common pleas, to issue a writ of attachment, * * *"
The twenty-sixth section of this statute extended the remedy of attachment against the property of nonresident debtors. In this situation, the creditor's oath or affirmation was required to show:
"* * * that the person, against whose estate such attachment is to be issued, is not, to his knowledge or belief, resident at that time in this State, and that he owes to the plaintiff a certain sum of money, specifying, as nearly as he can, the amount of the debt or balance, * * *."
Under this statute, as under the preceding statutes, the writ issued only in the case of a liquidated claim against the debtor, Moore v. Richardson & Baldwin, 65 N.J.L. 531 (Sup. Ct. 1900); Schenck v. Griffin, 38 N.J.L. 462, 467 (E. & A. 1875); Day v. Bennett, 18 N.J.L. 287 (Sup. Ct. 1841), which was founded on contract; Boyd v. King, 36 N.J.L. 134 (Sup. Ct. 1873). It was not required, however, that the affidavit filed to secure the writ state any more than the jurisdictional prerequisites established by the statute; it was not necessary that the affidavit set forth the details of the cause of action. Day v. Bennett, 18 N.J.L. 287 (Sup. Ct. 1841). In Shadduck v. Marsh, 21 N.J.L. 434, 435 (Sup. Ct. 1848) it was said:
"* * * The statute simply requires the applicant for the writ against a non-resident debtor, in addition to the fact of non-residence in this state, to swear that the defendant owes to the plaintiff a certain
sum of money, or balance. Rev. Stat. 58 § 40. It is therefore prima facie sufficient in order to authorize the use of the writ if the plaintiff makes the affidavit in the terms required by the act."
By an act approved April 28, 1886, P.L. 1886, p. 314, the remedy was extended to cases where the liquidated amount was due on a penalty imposed by statute.
In 1893 the Legislature adopted a statute, P.L. 1893, p. 181, approved March 10, 1893, which provided as follows:
"* * * That in all cases in which a capias ad respondendum may issue against the defendant or defendants in any action upon contract, the court, or a judge thereof, or a supreme court commissioner, may, at the request of the plaintiff, upon filing the affidavits required as a foundation for an order for bail, by an order made for that purpose, award a writ or writs of attachment against the lands and tenements, goods and chattels, rights and credits, moneys and effects of the defendant or ...