
    Hale & Head, et al., v. J. A. Grogan, et al.
    Attachments, When May Be Issued.
    An attachment can only be issued at the time or after the commencement of an action, and an action is commenced by filing the petition in the clerk’s office and causing a summons to be issued or a warning order made. An attachment is void where no summons has issued, and this question can be raised by another creditor.
    APPEAL PROM CALLOWAY CIRCUIT COURT.
    May 13, 1879.
   Opinion by

Judge Pryor:

The question raised in this case is, Can an attachment, issue before the summons? We see no escape from the conclusion reached by the court below.

The plaintiff may, at or after the commencement of an action, have an attachment, and not before. An action is commenced by filing in the clerk’s office the petition and causing a summons to be issued or a warning order made. Secs. 39-194, Civil Code. There is no lis pendens until a summons is issued or a warning order made, and the provisions of the General Statutes are not in conflict with this view of the case, and if such was the case the provisions of the Code of Practice must control.

The various actions in which attachments had been obtained were consolidated and the question presented as to the rights of the creditors. Each creditor was directly interested in having the property or its proceeds applied to the payment of his debt and we perceive no reason why in such a case one creditor should not be allowed to contest the right of priority on the part of other creditors, and to show that they have in fact no lien on the property sold. The attachment of the appellants was void, as no summons had issued.

G. A. C. Holt, William Lindsay, for appellants.

E. Crossland, for appellees.

The judgment below is therefore affirmed.  