
    LIMPERT BROTHERS, INCORPORATED, APPELLANT, v. R. M. FRENCH & SON ET AL., RESPONDENTS.
    Argued March 16, 1917
    Decided June 18, 1917.
    1. The respondents caused an . attachment to be issued out of a court for the trial of small causes and under it the debtor’s goods Were seized; subsequently, but before judgment in the proceedings, the prosecutors, as they claim, issued an attachment out of the Circuit Court against the same debtor and under it the same goods were seized. Held, that if it appeared that prosecutor had in fact issued the attachment and seized the goods ' it had the same right that the debtor would have to move the justice court to quash the writ issued by that court, and to rescue the goods, on which it had a lien, from the prior seizure.
    2. In support of such motion ex parte affidavits are not sufficient; the material facts must be proved'before the justice, by the production" of competent proof.
    8. A stipulation of facts not submitted to the justice of the peace cannot be used on review by an appellate court.
    On appeal from the Supreme Court.
    For the appellant, James O. Clark.
    
    For the respondents, Augustus C. Nash and Winfield S. Angleman.
    
   The opinion of the court was delivered by

Bergen, J. R.M.

French & Son procured a writ of attachment to be issued out of a court for the trial of small causes and the officer seized the property of Clay & Tokis, trading as "Diana,” the defendants in that proceeding. Subsequently, and before judgment therein, it is claimed by the present prosecutor that it caused to be issued a writ of attachment out of the Union County Circuit Court, under which the same property was attached by the sheriff. Thereafter, the .prosecutor filed an affidavit with the justice of the peace and moved to quash the writ issued by him because the Christian names of the defendants are not set forth in the affidavit or the attachment. -

The affidavit and the writ described the defendants as “Clay & Tolds, partners trading and .doing business as Diana,” and the motion to quash was made in pursuance of a stipulation that it should bo made "in one case, there being other attachments of like nature, “for the purpose of establishing the validity of said attachment.” The court, after argument, refused to quash the attachment and proceeded to hear the merits, rendering judgment for E. M. French & Son. The prosecutor then obtained a writ of ceriioraii to review the order of the court for the trial of small causes in refusing to quash, and the Supreme Court dismissed the writ upon the ground that the statute does not authorize a stranger to the record in that court to intervene by filing an affidavit of interest in the subject-matter of the litigation, and, therefore, the prosecutor had no legal status in the proceeding.

Assuming that it was properly proven before the justice Flint a writ of attachment had been issued out of the Circuit Court and the same goods seized under it, we are of the opinion that the conclusion of ihe Supreme Court was not sound in law, for it was held in National Papeterie Co. v. Kinsey, 54 N. J. L. 29, where a subsequent judgment creditor moved to quash a prior attachment that “the judgment creditors acquired ihe right of the judgment debtor in the property levied on, and had a right to rescue it for the satisfaction of their claims from any one who could not assert a superior title in the law to it. It is not perceived how the efficacy of the proceedings under the judgments can bo impaired, or how validity can be imparted to attachment proceedings unauthorized by law, by the mere volition of the debtor as against the judgment creditors. The debtor may waive his own rights, but be cannot, surrender the rights of his judgment creditor.” We are of opinion that an attachment vests in the attaching creditor' tire same right of rescue as if he wore a judgment creditor, and that if ilie debtor has a right to move to quash an attachment in any court, his attaching creditor has the same right. lie has a lien upon the property and stands in the place of the debtor and if the debtor is entitled to have the writ quashed he cannot defeat the rights of his other creditors, having a lien, by consenting to the execution of a void attachment. The prosecutor’s difficulty in this case arises over the method which it adopted in proceeding to quash the attachment, for while, as was said in McLaughlin v. Cross 68 Id. 599, “the practice is quite general to afford relief against void judgments to any person interested,”' the method of relief in a case of this character seems to be prescribed by statute. Section 43 of the Attachment act provides that in all cases of an attachment issued by a justice of the peace, when an affidavit shall be filed by or on behalf of the defendant, setting forth facts, which would render said attachment illegal or void, it shall be the duty of the justice upon a motion to quash to try the facts. In this case the prosecutor produced no witnesses but seems to have relied on the affidavit filed by him, and also the affidavit upon which the justice issued the writ, but it was held in Morris v. Quick, 45 Id. 308, that the ex parte affidavits of the moving party cannot be used on the motion but that he must sustain the .burden by legal evidence, that the writ was illegally issued.

The original affidavit described the debtor as “Clay & Tolcis, partners trading and doing business as Diana,” and section 3 of the Attachment act provides that the writ may issue against the separate and joint estate of joint debtors “either by their names or the names of the partnership or by whatsoever name they may be generally distinguished.” In the original affidavit the defendant is described as doing business rinder the name of Diana, and the prosecutor offered no proof that this was not correct.

Nor did the prosecutor make anjr legal proof before the justice of the peace that any attachment had been issued out of the Circuit Court and the debtor’s goods attached under it.

Without this there was nothing before the justice to show that the prosecutor had any interest in the goods*to be rescued for its benefit. The stipulation between the parties, from which an inference, it is claimed, may be drawn that there was such a writ of attachment was not submitted to the justice, and Ms record as returned, to correct which no attempt lias been made, certifies that “This court has no knowledge except the statements of the attorney that a writ of attachment has been issued out of the Union County Circuit Court. If a writ affecting these proceedings has been issued, superseding or affecting this jurisdiction, this court has ' not been officially so informed.” Under the facts before the justice he correctly disposed of the motion.

For the reasons given the judgment will he affirmed, with costs.

For affirmance—The Chancellor, Garrison, Swayze, Trenchakd, Bergen, Black, White, IIeppenheiher, Williams, Taylor, Gardner, J J. 11.

For reversal—None.  