
    THOMPSON a. CULVER.
    
      Supreme Court, First District; General Term,
    
    
      Nov., 1862
    Vacating Attachment aeter Judgment.
    A motion to vacate an attachment issued as a provisional remedy may be mad'» after judgment entered in the action.
    Appeal from an order denying a motion to set aside an attachment.
    
      This action was brought by Henry Thompson against Dudley G-. G. Culver upon a check for $616.50. An attachment was issued on the ground that the defendant had absconded or kept himself concealed to avoid the service of civil process. The ■attachment issued on February 12th, 1862. In March a motion was made to vacate the attachment. On March 25th the facts involved on the hearing of the motion were referred to A. B. Tappen, to hear and report with his opinion. The hearing was had, and on April 21st the referee reported the evidence with his opinion substantially that the facts did not sustain the attachment. The defendant sought to have the timé extended for -entering judgment till after the decision of the motion to set .aside the attachment, but failed, and judgment was perfected against him April 10th, 1862. On May 10th the sheriff sold The attached property. On the 25th of June the motion to varéate the attachment was heard before Mr. Justice Barnard and ■denied.
    The defendant appealed.
    
      William Fullerton, for the appellant.
    I. The motion to discharge the attachment in this case was made before the plaintiff obtained his judgment; the defendant, therefore, saved his right to have the attachment heard, even after judgment. It was no fault of his that judgment was entered before his motion .was argued. Having no defence to the action, he was under no obligations to obtain a stay of proceedings pending the motion. The motion being pending, the plaintiff took his judgment at his own risk.
    II. There is no good reason why the motion should not be made, after judgment, under such circumstances. If the defendant’s property was improperly seized under attachment, it is his right-to have it set aside. He ought not to be deprived of this right because the plaintiffs have it in their power to delay the motion until after judgment.
    HI. In all the cases where this question has come up, the motion to discharge the attachment was made after judgment. In such case it has been held that the plaintiff had lost his right by delay in making his motion.
    IY. The proper construction of the sections of the Code, relating to attachments, secures to a defendant the right to set aside the attachment, because, after judgment, the sheriff proceeds to sell the property under the attachment, as well as on execution. The attachment, therefore, is not merged in the judgment, but is retained and used, as an effective process of the court, after the entry of judgment. Hence, it follows that it is subject to the order of the court, and may be set aside in a proper case.
    
      Gilbert Dean, for the respondent.
    I. The motion to vacate the attachment must be denied—it being a provisional remedy, it merged in the judgment. 1. This has been decided in two reported cases. (Spencer a. Rogers’ Locomotive Works, 13 Abbotts' Pr., 180; Schieb a. Baldwin, Ib., 469; S. C., 22 How. Pr., 278.) 2. Property seized under an attachment or execution is in the custody of the law, and no other claim will be recognized which is not prior to that under which it was seized, and this is a question of jurisdiction. (Taylor a. Caryl, 20 How. U. S., 584; 24 Ib., 450; Code, §§ 227, 237.)
    II. The court having had jurisdiction to issue the attachment, it can only be vacated on appeal, and not on the opinion" of any person, on a disputed question of fact. (1 Code R., N. S., 49; 14 How. Pr., 547.)
    HI. The referee has mistaken the section of the Code under which this attachment issued, or has not noticed the amendment of section 229.
    IY. The attachment should be sustained on the merits.
   By the Court.—Peckham, J.

Two points are made by plaintiff against the motion:

First, that it comes too late, judgment having been perfected prior to the hearing of the motion.

Second, that the defendant did, in fact, keep himself concealed with intent, &c.

As to the first point. If the- position be sound that such a motion cannot be made after judgment, yet this motion having been noticed and actually made confessedly in time, the extension of time caused by the reference will not make it irregular, though the hearing be not completed till after judgment.

But in my opinion, it is not indispensably necessary that the motion should he made before judgment. A very learned and respectable court has declared that the attachment is discharged ijpso facto by the entry of the judgment. But I can find no provision in the Code to that effect; on the contrary, there are provisions entirely inconsistent with such a position.

Among other provisions, the statute declares that “ until the judgment against the defendant shall be paid”—not recovered— but until it “ shall be paid,” the sheriff may proceed to collect the notes and other evidences of debt, and the’debts that may have been seized or attached under the warrant of attachment, .... and apply the proceeds thereof to the payment of the judgment.” {Code, § 237, subd. 4.)

It is clear that the sheriff has no such power under the execution. He has it obviously under the attachnlent, which, therefore, cannot be said to be superseded by the judgment.

The facts as disclosed by the affidavits, and the evidence before the referee, show that there was no ground for the attachment.

The order appealed from should therefore be reversed, and the attachment discharged, with $10 costs. 
      
       Present, Ingraham, P. J., Leonard and Peckham, JJ.
     