Opinion
February 27, 1925.
PRESENT: Sweetland, C.J., Stearns, Rathbun, Sweeney, and Barrows, JJ.
( 1) Discharge of attachment. Non-Resident. An action was commenced by writ of attachment under Gen. Laws, 1923, cap. 349, § 28, on the ground that defendant was a non-resident. Defendant answered the case and filed a plea of the general issue and later moved that his property be released from attachment, alleging that he was not a non-resident. Held, that as defendant was not seeking to question the jurisdiction of the court, the question of the legality of the attachment was properly raised on motion.
( 2) Residence. Attachment. Where one maintained a home on his farm in this State where he resided with his family; although he was temporarily out of the State at the time of the commencement of the action, he was not a non-resident within the meaning of Gen. Laws, 1923, cap. 349, § 28, providing for the attachment of the property of non-residents in tort cases.
( 3) Discharge of Attachment. Process. Jurisdiction. While there is no specific provision of statute providing for the discharge of an attachment on the ground of the falsity of the affidavit endorsed on the writ, a defendant can raise the question of the truth of the affidavit by a plea attacking the jurisdiction of the court or if he desires a trial of the action by motion and the court having control of its own processes may if it finds the affidavit to be false, discharge the attachment as constituting an abuse of its process.
CERTIORARI. Heard on petition for writ and denied.
James O. Watts, for petitioner.
Benjamin W. Grim, for respondent.
This is a petition for a writ of certiorari, praying that the record of the defendant court upon a motion to release the property of the defendant from attachment in the suit of Jessie Silva v. George Mills, pending in said court, be certified to this court for review, and that so much thereof as is illegal be quashed.
The case of Silva v. Mills is an action of trespass on the case for seduction. In reliance upon the provisions of Section 28, Chapter 349, General Laws, 1923, the action was commenced by writ of attachment upon which was indorsed the affidavit of the plaintiff affirming, among other things, that the defendant was a non-resident of this State. The defendant in Silva v. Mills answered the case and filed a plea of the general issue. Later he moved in the Superior Court that his property be released from attachment upon the original writ on the ground that he was not a non-resident of the State at the time of the issuance of the writ. This motion was heard before a justice of the Superior Court who granted the defendant's motion.
One of the objections of the petitioner to the action of the justice is that it was made upon motion and not by plea in abatement. We approve the decision of the justice that as the defendant in the suit did not desire to question the jurisdiction of the court but to have a trial of the action his motion properly brought before the court the question of the legality of the attachment. The justice found that the defendant at the time of the commencement of the action maintained a home on his farm in this State where he resided with his family, although he was temporarily out of the State at that time. In those circumstances the justice held that the defendant was not a non-resident within the meaning of the statute. (Section 28, Chapter 349, General Laws, 1923.) We approve his ruling of law in that regard and would not, upon anything that has been brought before us in this proceeding, disturb his finding of fact.
The petitioner further claims that the action of said justice was unwarranted because of lack of statutory authority to release said property from attachment. There is no specific provision of the statute providing for the discharge of an attachment on the ground of the falsity of the affidavit indorsed on a writ. A defendant can, however raise the question of the truth of the affidavit by a plea attacking the jurisdiction of the court; or, if the defendant desires a trial of the action, he may raise the question by motion, and the court having control of its own processes may, if it finds the affidavit to be false, discharge the attachment as constituting an abuse of the court's process, which the justice did in this case.
The petition for the writ of certiorari is denied.