55 Mo. 128 | Mo. | 1874
Lead Opinion
delivered the opinion of the court.
This was an action of ejectment, commenced in the Dade Circuit Court, for lands lying in that county, and taken by change of venue to the eounty of Greerfe. Both parties trace their title to John N. Ferguson as the original source,who was formerly seized of tlie premises. The record shows, that the Merchants Bank of St. Louis brought a suit by attachment against Ferguson and others on a bill of exchange in 1865 in the Dade Circuit Court. The petition was in the usual form,
To the petition was appended an additional affidavit, merely stating that to the best of affiant’s knowledge and belief the defendants were non-residents of the State. TJpon the petition thus verified, and the additional affidavit of non-residence, a writ of attachment was issued, and was by the sheriff levied on the lands in dispute. An order of publication was made and duly published in a newspaper in pursuance of law. The defendants did not appear and were not served with a summons. At a subsequent term of the court a special judgment was rendered in the cause against the defendants and the attached property. On the margin of the record of this judgment a memorandum, “erroneous entry,” is written. On a subsequent page is entered another judgment, which appears to be between the same parties and is in the form of a general judgment instead of a special one. Afterwards, the clerk issued a general execution, which was levied on the attached lands, and they were sold by the sheriff to the defendants, and they are the lands in controversy. A deed was made by the sheriff reciting the proceedings in the attachment suit, a rendition of the special judgment, and a sale thereunder, and was duly acknowledged. At the instance of the plaintiffs the court excluded this deed as evidence at the trial, and instructed, that the sheriff’s deed offered in evidence was wholly void and conferred no title on the defendants to the lands sued for. A verdict and judgment were rendered for plaintiffs, and a motion for a new trial was overruled.
It is obvious from this statement that the main point here is, whether the writ of attachment and the proceeding thereunder were void, Before an attachment can issue, the statute law requires that the plaintiffs shall file an affidavit in the clerk’s office of the- court in which the suit is brought, stating that he has a just demand against the defendant and the amount thereof which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, and that he has good reason to believe, and does believe, in the exist
2nd. But it is urged that as the writ of attachment was in fact issued and levied on the lands in dispute, that brought them before the court and gave the court full jurisdiction over them to render a special judgment, without regard to any prior or subsequent proceeding; that this is in the nature of a proceeding in rem, and the land attached is the res, and the court can render a valid judgment for sale of the land without complying with any of the other requisites of the statute; that the sale and deed of a sheriff would pass the title whether there was any affidavit at all, or any order of publication made or published. This proposition is so monstrous, and would lead to such ruinous consequences, that I cannot yield it my assent. The authorities seem to be conflicting in the different States on this question. Those affirming the proposition base their decisions on the doctrines of maritime law. But there is very little analogy, if any, between attachment suits,which derive their existence exclusively from statutory law, and proceedings in admiralty. In maritime cases, the ship or vessel libelled is the real party defendant. The doctrine of the maritime- law is, that the whole world is bound by the proceedings whether notified or not. If notice is required, it is
This doctrine is not applicable to a statutory attachment. The real suit is in favor of and against individual persons. The property itself is, in no sense of the word, a party to the suit, but is brought before the court as ancillary or in aid of the remedy against the real party,who is presumed to be the owner of it. The attached property does not represent the defendant, but is merely held in custodia legis to satisfy the debt that may be proven to exist against the defendant.
How can a judgment be rendered against the defendant’s property, unless he is before the court by service oí summons or personal appearance, or by constructive notice by order of publication duly published when that is required ? The statute must be substantially complied with in order to render the jurisdiction complete. There must be first a petition and the necessary affidavit to give jurisdiction to issue the writ of attachment, and when the attachment is levied, the court may proceed to take care of the property, and if necessary, may sell perishable property and keep the proceeds of the sale in custody till final judgment. But to warrant any such judgment, the defendant must be brought before the court in the manner indicated by the statute, either by service of summons or appearance, or by an order of publication duly made and duly published. These are all jurisdictional steps, and not merely directory, to render the jurisdiction complete. I do not say that the Legislature could not order attached property to be applied to the payment of a debt of a non-resident without any notice at all. It has not attempted to do so, but has thrown these jurisdictional safeguards around if to be observed, before a defendant can be robbed of his estate by an ex parte proceeding.
A court of equity has the power to pass title to real estate within its jurisdiction. The first step required is to file a petition, describing the land to be acted on and where situated. That brings the land before the court, and makes it a case in
3rd. If there had been any authority to render any judgment at all in this case, the special judgment was the proper one, and a general judgment, simply on an order of publication, was void. The execution being general was only irregular. As it was only levied on the attached property, as to that property it amounted to a special execution, and the error might at any time be corrected by an amendment mine pro tunc.
As there was no. affidavit to warrant the attachment, the subsequent proceedings were void. This leads to an affirmance of the judgment.
Judgment affirmed.
Concurrence Opinion
delivered the separate concurring opinion.
I concur with Judge Adams in regarding the affidavit required by the 6th section of the Attachment law as essential to give the clerk a right to issue the writ, and that this affidavit must substantially comply with the requirements of said section. The affidavit in this case is merely that the defendant is a non-resident; but it is not stated, that the plaintiff has a just demand against the defendant, nor does it state any amount as due to the plaintiff after allowing all just credits and off-sets. This is the very basis of the jurisdiction of the court. The fact that the defendant is a non-resident is a very unimportant one, if he really owes nothing to plaintiff, and the plaintiff’s oath, that the defendant is justly indebted to him in
Dissenting Opinion
delivered the dissenting opinion.
This was an action of ejectment commenced in the Dade Circuit Court for the recovery of certain lands lying in that county. A change of venue was taken to Greene County, where a trial was had and judgment was rendered for the plaintiffs. Both parties trace their title to one John N. Ferguson, as an original source, who was formerly seized of the premises. The record shows, that in 1865 the Merchants’ Bank of St. Louis brought a suit by attachment in the Dade Circuit Court against Ferguson and others on a bill of exchange. The petition was in the usual form, properly verified in conformity with the law as it then existed. To the petition was appended an additional affidavit, stating that to the best of the affiant’s knowledge and belief, the defendants were non-residents of the State. Upon the petition thus verified and the affidavit' of non-residence, a writ of attachment was issued, and was by the sheriff levied on the lands in controversy. An order of publication was also made against the non-resident defendants, notifying them of the commencement of this suit and the nature thereof. This order was properly published in a newspaper in pursuance of law. At a subsequent term of the court, a special judgment was rendered in the cause against the defendants, and an order made for the sale of the lands attached under a special execution. On the margin of the record of this special judgment is written “ erroneous entry.”
The deed made by the sheriff to the defendant recited the proceedings in the attachment, the rendition of a special judgment, and a sale thereunder, and was properly acknowledged. At the instance of the plaintiff, the court excluded this deed at the trial, and the defendant excepted. It also gave an instruction on the same side, that the sheriff’s deed offered in evidence was wholly void and conferred no title upon the defendant to the lands sued for and was excluded from the jQ17-
The defendant asked an instruction, which was the converse of the one given for the plaintiff, which ihe court refused, and he has now brought the case here by appeal. The principal grounds now urged by plaintiffs’ counsel in support of the judgment are: that the proceedings in the attachment suit were void, because there was no affidavit justifying them, and that the judgment and execution were general, and therefore wholly unwarranted by law.
The affidavit alleged the non-residence of the parties defendant according to the first sub-division of section one of the act respecting attachments. (1 E. C., 1855, p. 238.) But the 5th section of the same act, in defining what the affidavit shall contain, says, that it shall be made by the plaintiff, or some person for him, and shall state, that the plaintiff has a just demand against the defendant, and that the amount which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, is-dollars, and that he has good reason to believe, and does believe, in the existence of one or more of the causes authorizing an attachment under the first section.
The principle has been so constantly acted upon, even from the earliest periods, that it has become axiomatic, that,when a judgment of a court is offered in evidence collaterally in another suit, its validity cannot be questioned for errors which do not affect the jurisdiction of the court that rendered it. Attachment suits founded upon constructive service are essentially in the nature of proceedings in rem, and the seizure of the property, or obtaining possession of the res, is, therefore, the basis of the court’s jurisdiction.
In the case of Cooper vs. Reynolds (10 Wall., 308,) it was decided, that the seizure of the property of the defendant under the proper process of the court, was the foundation of the court’s jurisdiction, and that defective or irregular affidavits and publications of notice, though they might reverse the
As to the judgment and execution, though admittedly informal and irregular, can they be treated as absolutely void in this action % In the case of Massey vs. Scott, above cited, it was held, that, where suit is begun by publication and attachment, the judgment will bind only the property attached; but that a general judgment in such case, although informal, is nevertheless valid till reversed, and will authorize the issue of a special execution against the attached property, and that a court would at any reasonable time correct such a judgment by an entry nunc pro tunc.
If the general execution had been issued and levied on property other than the attached property, the levy and sale under it would have been void. (Clark vs. Holliday, 9 Mo., 702.) The reason for this' is plain enough, because in such a case the property would not have been subject to the jurisdiction of the court. That the judgment and execution in the present case could have been amended is not doubted, and proceedings which are amendable are not void. (Hardin vs. Lee, ubi supra; Cooper vs Reynolds, 10 Wall., 308; Durham vs. Heaton, 28 Ills., 264; Parmlee vs. Hitchcock, 12 Wend., 96; Stewart vs. Severence, 43 Mo., 331.)
In Hunt vs. Loucks (38 Cal., 372) the Court say : “ Like an erroneous judgment, an erroneous execution is valid until set aside upon a direct proceeding brought for that purpose, and, until set aside, all acts which have been done under it are valid. In a collateral action it cannot be brought in question, even by a party to it, much less by a stranger to
There is nothing to show, that this judgment was ever ordered by the court to be set aside or to be for naught held. In such a case,where a doubt is raised between the validity of two acts, the presumption would be in favor of the legality of the proceedings of the court. But, if we concede that a general judgment was actually rendered, upon which a general execution was issued, it by no means follows, that they can be held void collaterally. Had property been sold, other than that on which the writ of attachment was levied, then there can be no question that the sale would have been an utter nullity. But the very property that was sold, and which is here in controversy, was the property that was attached, and thus brought within the jurisdiction of the court. Jurisdiction having attached, the court could legally order it to be sold or disposed of, and though the judgment and execution were unquestionably-irregular and informal, they were still valid until set aside or reversed in a direct proceeding instituted for that purpose, and they could not be impeached or drawn in question in a collateral action.
I am of the opinion that the judgment below should be reversed, and the cause remanded.