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Appeals Regarding Attachment or Execution

An attachment is a provisional remedy whereby a debtor’s property or any interest therein capable of being taken under a levy and execution is placed in the custody of the law to secure and protect the interests of creditors, pending the determination of the cause to which the attachment is auxiliary.[i]

By means of attachment, a creditor effects the prejudgment seizure of a debtor’s property, to be held by the sheriff, so as to apply the property to the creditor’s judgment.[ii] Attachment simply keeps the debtor away from his property, it does not transfer the property to the creditor.

An attachment is a proceeding auxiliary or incidental to the main action and not an original action.[iii] A judgment in attachment proceedings merely auxiliary to the main action is interlocutory and unappealable before final judgment.[iv] Moreover, the order as to the dissolution of the attachments is an order as to which appeal does not lie.[v] Also, the denial of an application for a reduction or discharge of an attachment in an action at law is not appealable.[vi] In Brignall v. Merkle, 296 Ill. App. 250 (Ill. App. Ct. 1938), the court held that an order denying a motion to vacate an order discharging garnishees, in an attachment in aid of a suit, is not appealable.

Ordinarily, no appeal will lie to the law court unless the appeal is from a final judgment.  However, there are certain exceptions to the rule.  One exception is interlocutory orders or rulings to be reported to the law court when the presiding justice believes that questions of law have been presented which require determination prior to any further proceedings in the case.  Another exception is the collateral order rule.[vii] Thus, an interlocutory order which relates to an attachment and orders dissolving or denying attachment and trustee process are appealable.[viii]

An appeal may be taken from an interlocutory ruling vacating an attachment.[ix] In Boyle v. Share, 377 A.2d 458 (Me. 1977), the court held that two requirements are to be met before an interlocutory order can be appealed.  The first is that the claim must be important and the second is that the order must be independent from the main action.

In Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111 (2d Cir. N.Y. 1991), the court held that orders denying or requiring security are interlocutory.  However, appeal is permitted in that small class of cases which finally determines claims of right separable from and collateral to rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The court observed that there are three conditions for appealability under the collateral order doctrine.  The order must:

  • conclusively determine the disputed question;
  • resolve an important issue completely separate from the merits of the action; and
  • be effectively unreviewable on appeal from a final judgment.

Thus, orders denying security are appealable as collateral orders, on the other hand, orders requiring security are not appealable.

In Dayco Corp. v. Foreign Transactions Corp., 705 F.2d 38 (2d Cir. N.Y. 1983), the court held that an order confirming or refusing to confirm an attachment is in no way final.  Thus, an order denying a motion to confirm an attachment, which involves only a factual determination and presents no legal questions of first impression or extraordinary significance, is not appealable.

Attachment and execution are similar processes, the function of both being to aid a creditor in sequestering the property of his debtor.  A motion to dissolve an attachment or an order discharging an attachment is an order affecting a substantial right and is, therefore, a final order reviewable on appeal.  Similarly, an order refusing to quash an execution and an order staying the execution of a judgment are final orders.[x]

However, in Loeber v. Schroeder, 149 U.S. 580 (U.S. 1893) the court held that a final judgment or decree of the highest court of a state overruling a motion to quash an execution is not such a final judgment or decree in any suit and not appealable.

[i] Boyer v. Meeks, 88 Ind. App. 450 (Ind. Ct. App. 1929)

[ii] Hotel 71 Mezz Lender LLC v Falor, 2010 NY Slip Op 1348 (N.Y. Feb. 16, 2010)

[iii] Boyer v. Meeks, 88 Ind. App. 450 (Ind. Ct. App. 1929)

[iv] Brignall v. Merkle, 296 Ill. App. 250 (Ill. App. Ct. 1938)

[v] De Rosier v. Meunier, 299 Mass. 37 (Mass. 1937)

[vi] Weiss v. Balaban, 315 Mass. 390 (Mass. 1944)

[vii] Boyle v. Share, 377 A.2d 458 (Me. 1977)

[viii] Sprague v. Washburn, 447 A.2d 784, 786 (Me. 1982)

[ix] Boyle v. Share, 377 A.2d 458 (Me. 1977)

[x] Roach v. Roach, 164 Ohio St. 587 (Ohio 1956)

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