Crowell v. Johnson

2 Neb. 146 | Neb. | 1873

Lake, J.

This is a proceeding in error to reverse the judgment of the District Court for Burt County, rendered in favor of the defendant in error upon the facts found by the Court, a jury having been waived by the parties.

The action in the Court below was brought to recover the possession of certain real estate to which both parties claimed the legal title, and both derived their pretended ownership from a common source.

The plaintiff’s claim is based upon several conveyances from James E. Dawley, and Helen S. Dawley his wife, to himself, bearing date the 27th of April, 1869. The defendant rests his claim to title upon the sale of the premises by the sheriff of Burt County, in pursuanee of an order of tbe District Court, made in a case wherein one William L. Phillips was plaintiff, and said James E. Dawley was defendant, in which action said premises had been taken by attachment. This suit of attachment was commenced in December, 1863: final judgment, and order of sale, were entered April 17,1864, and the sale actually made by the sheriff on the sixth day of June following, the plaintiff Phillips being the purchaser. On the sixth day of June, 1865, the sale was confirmed; but the sheriff’s deed was not made to the purchaser until the 9th of November, 1869. The defendant is a purchaser from Phillips, by deed bearing date of Aug. 12, 1868 ; and is in possession.

On the trial of the cause, very many questions were raised by the plaintiff, by objections to defendant’s testimony. The several objections and exceptions are, however, so imperfectly preserved, that but for the fact that the respective counsel have seen fit to treat them as explicit, and have in their briefs very clearly presented the real points in dispute, we should be inclined to affirm the judgment without any examination of the alleged errors.

It is objected to the title under which the defendant holds the lands, that the Court never acquired jurisdiction of the property; that the proceedings are merely void, and therefore the sheriff’s deed to Phillips conveyed nothing.

The first point urged in support of this position is, that the affidavit for the order of attachment has no venue; that it does not appear that the officer taking it acted within bis territorial jurisdiction.

This objection cannot be sustained. The affidavit was sworn to before the clerk of the Court in which tbe action was pending; and it will be presumed that the clerk administered the oath in the proper county. Snell v. Echerson, 8 Iowa, 284. This objection, and also that taken to the form of the order of attachment, only show at most that the proceedings in these respects were erroneous, which can avail nothing to the plaintiff in this collateral action. They are only errors committed by a court which had jurisdiction of the subject of the suit, and was fully authorized to render the judgment, and make all necessary orders for its enforcement. These proceedings can be assailed, — not, as here attempted, collaterally, but only by a proceeding brought directly for the purpose of setting them aside. Lessee of Paine v. Moreland, 15 Ohio, 435 ; Martin et al. v. Barrow, 37 Mo., 301; Shawhan et al. v. Leffer, 24 Iowa, 217.

The same may be said of the objection that the record fails to show that a proper affidavit for service by publication was made.

In the case of the Lessee of Paine v. Moreland, above cited, Judge Reed, delivering the opinion of the Court, said, “ Are the proceedings in attachment void ? It is contended that they are void, because no notice of the pendency of the attachment was given as required by the statute. If the jurisdiction of the Court once attached, subsequent irregularities would render the judgment voidable only; and it would remain valid until reversed, and cannot be impeached collaterally.”

So here we find that the Court had acquired jurisdiction of the property by the levy of the order of attachment thereon. The necessary affidavit for the attachment'had been filed, and order duly issued and levied, whereby the property of the debtor was taken from him, and placed in the custody of the law.

Now, all this may be done on the very day the action is commenced, and before any notice is given to the defendant. Thus far, it is strictly a proceeding in rem; and the want of notice to the debtor can have no effect whatever. But the law regards it but just to the defendant that he be notified of the proceeding against his property, and provides that notice shall be given to him. If he be within the jurisdiction of the Court, the notice must be personal; but if, as here, he be a nonresident, beyond the jurisdiction of the Court, such notice may be given by publication. In either case, to be valid, it must conform substantially to the requirements of the statute. But, should it fail to do so, the proceeding is of course voidable, but not void. It may be reversed in a proceeding instituted for that purpose; but it cannot be assailed collaterally. The rule is the same, whether the notice be personal by the service of a summons, or constructive by publishing the same in a newspaper.

But it is urged, with considerable earnestness, that the final judgment will not support the order of sale, it being in form rendered against the property instead of the defendant. After reciting the facts found by the Court, among which is, “ that the said defendant is indebted to the said plaintiff in the sum of $612¶-^, and it appearing that an attachment has been issued against the property of the defendant, &c., it is therefore ordered and adjudged that the plaintiff have and recover a judgment against the said attached property for the sum of damages, and the further sum of $15^¶00 costs suit. And it is further ordered and adjudged that an order of sale be issued by the clerk of this court, directed to the sheriff of said county, commanding him to sell so much of said property, land, and tenements, heretofore attached herein, as shall be necessary to satisfy the said claim of the said plaintiff, and the money arising therefrom be applied to satisfy said judgment and costs; and that any surplus that may remain be returned to the said defendant.”

'The judgment would certainly have been more formal bad it run directly against the defendant by name. It is customary so to render it; and tins unquestionably is the better course. But, taking the whole entry together, I think the judgment is made sufficiently certain. It first finds the amount due from the defendant to the plaintiff, and adjudges the same in his favor, to be paid from the proceeds of the attached property which was then in custody of the law. It may be considered as quite informal; but I do not consider it erroneous, much less void.

In Vangeazel v. Hillyard, 1 Harrington (Del.), 515, it is held that a judgment in this form is valid: “ It being found that John Yangeazel, the defendant, is indebted to Robert Hillyard, the plaintiff, $'78-jjj^-. Wherefore judgment is rendered against John Yangeazel, the defendant, for $78.07 debt and $1.90 costs of suit.” It was objected that there was a want of certainty as to whom the judgment was in favor of; but the Court held it to be sufficiently certain by an inspection of the whole record, and refused, therefore, to disturb it.

It is ydiolly unnecessary to go further, inasmuch as the only remaining objections relate solely to the proceedings of the sheriff in making the sale under the order of the Court. These questions were all fully considered, and finally disposed of, by the Court in the order of confirmation, and cannot here be reviewed. Phillips v. Dawley, 1 Neb., 320.

We find no substantial error in the record ; and the judgment of the District Court is in all things affirmed.

Judgment affirmed.