Page images

It will be observed that the first group of these remedies assume the plaintiff's right in the specific thing claimed, while attachmnent concedes defendant's right, and asks to anticipate judgment. and execution.

A defendant who makes a case for affirmative relief is entitled in a proper case to the same remedies in all these respects as if he were proceeding as a plaintiff by a cross action, instead of prosecuting a counterclaim in an action originally brought against him. 16 All that is here said, therefore, of the remedy of a plaintiff is equally applicable to such a defendant.

2. Neither remedy necessarily exclusive.] – Neither of these remedies are necessarily exclusive of any others in the same case. The court has power, if a sufficiently clear case is made out, to allow any of these remedies which may be reasonably necessary to secure the plaintiff's right16 (if the nature of the case be within the statute as to each), so far as it can be done without oppression to the defendant.17

in the original Code were well classed with these, under the name of claim and delivery, have been in the recent revision unwisely treated separately under the old name of “replevin", in a way to sanction the revival of the tradition that such proceedings can only be taken in an action of a common law nature (Id., chap. 14, tit. 2). Those proceedings are however expressly declared to be within the rule that from the time of granting a provisional remedy the court is deemed to have jurisdiction (Id., $ 1693).

15 See N. Y. Code Civ. Pro., & 720.

16 Arrest and attachment may both be allowed in the discretion of the court as concurrent remedies. Rockford, etc., R. R. Co. v. Boody, 56 N. Y. 456. So, also. of injunction with them or either of them. See N. Y. Code Civ. Pro., $ 719; Merritt v. Thompson, 3 E. D. Smith (N. Y.) 283.

Injunction and attachment may be allowed in the same action. Mitchell r'. Bettman, 25 Barb. 408, 413.

Notice of lis pendens filed, if not clearly sufficient protection, is no objection to granting an injunction. Cornell r. King, 13 Wkly. Dig. 327.

So proceedings of claim and delivery (replevin) do not necessarily preclude injunction. Hunt 1. Mootry, 10 How. Pr. 478, where the opinion is well expressed that equitable relief may be had in replevin, by injunction, if not inconsistent with the statutory proceedings. S. P., Furniss r. Brown, 8 How. Pr. 59.

But replevin may preclude actual arrest, and vice versa. N. Y. Code Civ. Pro., & 1714.

Injunction, and order to stay waste or damage to real property, are not inconsistent. See N. Y. Code Civ. Pro., § 1681.

So power to grant an injunction often involves or implies the power to appoint a receiver, otherwise the plaintiff might be left with no remedy but to try to punish for contempt.

17 It seems that both an order of arrest and an attachment may be simul. taneously pursued so far as to secure a probable satisfaction of the plaintiff's demands, but that the arrest of defendant, and seizure of his property to the full amount of the claim, will not both be allowed. People v. Tweed, 5 Hun, 382; Duncan v. Guest, 2 N. Y. Civ. Pro. Rep. 275.

And where the violation of a right admits of a civil and also a criminal prosecution, the one is not merged in the

So an offer of judgment and its acceptance does not extinguish a right to arrest upon the cause of action. 19

A party asking arrest, injunction and attachment, or any two of them, may, unless they are necessary for his security, be required, in the discretion of the court, to elect between them. X. Y. Code Civ. Pro., $ 719.

18 N. Y. Code Civ. Pro., & 1899.
19 Collins r. Harris, 5 N. Y. State Rep. 162.



13. Filing nunc pro tuno.
14. Service of summons.
15. Effect of judgment.
16. Cancelling.
17. Superseding.
18. Fraud.
19. No personal liability.

1. The judicial doctrine of lis pen

dens. 2. What constitutes commencement

of lis. 3. Origin and effect of lis pendens

statutes. 4. In what actions the statutory

notice must be filed. Defendant's notice. 6. What classes of claimants af.

fected. 7.

- persons claiming under plain

tiff. 8. Description of premises. 9. Time of filing. 10. Place of filing. 11. Omission to index, 12. Amending.

(522) Notice of pendency of action

(statutory notice of lis pen

dens). (523) Direction to index notice of

pendency. (524) Affidavit on motion to cancel

lis pendens. (525) Order cancelling notice of


1. The judicial doctrine of lis pendens.] -At common law,20 as well as in equity, and independent of statute, one who acquires an interest in, or lien upon specific property (other than negotiable paper,22 shares of stock,23 etc.] pending a suit, the object of which is to reach that specific property, 24 takes subject to the result of the action, if interest be acquired from a party thereto,2% and the property be described in the complaint sufficiently to identify

20 Sorrell r. Carpenter, 2 P. Wms. 483 (saying that the equity practice was in imitation of the common-law rule;) Murray v. Ballou, I Johns. Ch. 566

21 Or any part of the property in litigation. "Chapman v. West, 17 N. Y. 125. 22 Leitch 1. Wells, 48 N. Y. 585, 613. 23 Holbrook r. N. J. Zinc Co., 57 N. Y. 632; Am. Press Asso. v. Brantingham, 75 App. Div. 435, 78 N. Y. Supp. 305.

24 An action to establish a lien (in this case for attorney's fees) on real prop. erty is an action affecting the title within the doctrine of lis pendens. Wilson 0. Wright, 72 Ga. 848 (attorney's lien); Sanders v. Warner, 2 Wkly. Dig. 507 (charge on married woman's separate estate, under former statutes).

25 The rule affects only voluntary alienations, and not third persons asserting adverse rights obtained prior to the commencement of the suit. Becker 1. Howard, 4 Hun, 359, so held and so laid down in affirming judgment while reversing 47 How. Pr. 423, aff'd, 66 N. Y. 5. It does not affect one who takes a tax title from the Comptroller of the State prior to an action to foreclose a mortgage on the same property. Id.

In Randall v. Snyder, 64 Tex. 350, it was held, reversing judgment below. that although a purchaser pendente lite is bound by the judgment, yet, after judgment in favor of his vendor, he is not bound by a judgment rendered in a subsequent suit based on the same cause of action, but to which he was not a party.

[ocr errors]

it, even if he be a purchaser in good faith and for value, without notice of the suit.

The rule applies equally to purchasers from one of several co-plaintiffs or co-defendants, when there is a controversy in the action between him and his co-party.

The sole object of the rule is that the power of the court orer specific property to affect which an action is pending, shall not be impaired by a party to the action transferring the property pending the action, even to a bona fide purchaser wii notice.” Hence it has been held that after issue joined the judicial rule charges such a purchaser with notice of the clains in the pleadings only,” and after judgment, only of the judgment itself."

The rule, however, is enforced by other courts as well as the one whose judgment it is the object to protect.

Courts of law hold those bound who purchase pending an equity suit, and courts of equity hold those bound who purchase pending a suit at law."

2. IThat constitutes commencement of lis.] — No little injustice resulted from uncertainty as to what was the precise stage of the commencement of a suit when it should be deemed to be

pending” within the meaning of this rule. It was finally settled that both the filing of the pleading and service of process, if not also of the pleading, must have taken place ;31 and if there were several defendants, interested, but not jointly, in the property, service on one was only enough to bind purchasers from that one.

Service of the summons without complaint is enough, if its

26 See Craig r. Ward, 1 Abb. Ct. App. Dec. 454, 3 Abb. Pr. (X, S.) 235, aff'g 36 Barb. 377.

27 See the leading cases of Murray r. Ballou, 1 Johns. Ch. 566: Nerman . Chapman, 2 Rand. 93; S. P., Tilton v. Cofield, 93 U. S. 163; County of Warren t'. Marcy, 97 id. 96, 105 dictum ) ; Buser ?". Shepard, 107 Ind. 417, 424, 8 X. E. Rep. 282 (dictum) ; citing also Smith r'. Hodsdon, 78 Me. 180, 3 Atl. Rep. 276

Purchasers of real estate pendente lite are bound by the decree eren though the purchaser be a corporation organized under the laws of another State. Whiteside r'. Haselton, 110 U. S. 296.

28 Weiler 1. Dreyfus, 26 Fed. Rep. 824.
29 Miller r. McGuckin, 15 Abb. N. C. 204.

30 Bennett r. Williams, 5 Ohio, 461; Inloe v. Harvey, 11 Md. 519 (holding at law, that a purchaser pendente lite of the subject of a bill in chancery was bound at law, by the decree in chancery).

Smith 1. Coker, 65 Geo. 461 (purchaser pending suit at law held, in subsequent suit in chancery to enforce the judgment at law, bound by that judgment).

31 Murray 1. Ballou, 1 Johns. Ch. 566; Leitch r. Wells, 48 N. Y. 585; Zoeller 1'. Riley, 100 N. Y. 102; Beardslee v. Ingraham, 183 N. Y. 419; Farmers' L. & T. Co. 'l'. Lake St. R. R. Co., 177 U. S. 51.

32 Myrick v. Selden, 36 Barb, 15, 22.

contents put the defendant served on inquiry as to the object of the suit. 33

It is not essential that service be personal. Legal service, though constructive, is enough.34

Thereafter the world must take notice that the controversy as to the property is before the court, and cannot be entangled by a transfer. Hence it was common to say that the filing and service were constructive notice.

3. Origin and effect of lis pendens statutes.] — To make this constructive notice still more explicit, in respect to real property, and thus limit the judicial rule within narrower bounds, the lis pendens statutes were adopted, the usual purport being to provide that a plaintiff in an action affecting real property may file a notice, describing the property, and the object of the action, and naming the parties; that all such notices shall be indexed under the defendants' names; and that the pendency of no action as to real property shall bind purchasers, etc., unless such a notice of the action be filed. The primary object of these statutes is, by requiring, or at least allowing a definite record, to abolish the somewhat indefinite judicial rule of lis pendens, as to all cases within the scope of the statute 35 The right to a lis pendens is not a property right, and falls if within an amendment of the statute, although the right of action arose before the amendment.


l'nder these statutes, one who holds an unrecorded deed or mortgage, and does not put it on record until after notice of the

33 Albert 1. Back, 52 N. Y. Super. Ct. 550. Under the N. Y. Lis Pendens statutes service of complaint is not required to give effect to the lien.

31 Hayden r'. Bucklin, 9 Paige. 512; and see Green 1. Slayter, 4 Johns. Ch. 38.

I'nder the N. Y. Code of Civil Procedure, when constructive service of process is required with the statutory notice of lis pendens, it must usually, if not always, be under an order for publication. Substituted service within the State was held good service under & 1670, in Ferris t. Plummer, 46 Hun, 515, 13 Civ. Pro. Rep. 389.

35 De Camp 1. Carnahan, 26 W. Va. 839 (land sold under a decree in an attachment suit. No lis pendens filed as required by W. Va. Code, chap. 139, $ 14. Held (reversing decree to the contrary), that a purchaser from the debtor pendente lite could hold as against the purchaser under the decree).

Where a statute provides for filing notice of lis pendens (as in Colorado statute), no purchaser is bound unless notice is filed, or he has actual notice. Richardson 1. White, 18 Cal. 103.

Only those who are not parties to the action should be allowed to take advantage of omitting to file a notice. White 1. Coulter, 1 Hun, 357, 3 Supm. (t. (T. & C.) 608, modified on other points in 59 N. Y. 629. Same principle where notice was defective. Brenen v. North, 7 App. Div. 79, 39 N. Y. Supp. 975. 36 Bresel 1:. Browning, 109 App. Div. 588, 96 N. Y. Supp. 402.

« PreviousContinue »