46 Neb. 740 | Neb. | 1896
December 17, 1889, Thomas Wolfe commenced an action against Joseph Blahak and another, in the county court of Butler county, to recover the sum of $282.60 on a promissory note. He caused au attachment to be issued against Joseph Blahak on the ground of a fraudulent removal and sale of the latter’s property. The attachment was levied on certain corn as the property of Blahak.. The summons in the ease was January 5, 1890, returned “Not found,” and down to the trial of the present action no further steps had been taken in the attachment case. February 15, 1890, Mack, the defendant in error, commenced the present action in replevin against Darnell, the sheriff, who held the corn under the writ of attachment. The ease was tried in 1891 to the court without the intervention of ajury,and there was afinding and judgment for the plaintiff, .from which the sheriff prosecutes error.
The plaintiff claimed the'property by virtue of a chattel mortgage from Blahak. The defendant undertook to justify under the writ of attachment. The argument of the plaintiff in error is addressed largely to an attack upon the admission in evidence of the chattel mortgage relied upon by Mack. Under that assignment we can hardly consider the question presented, for the. reason that in trials to the court without a jury errors in the admission of evidence are not, as such, open to review; but as Mack’s claim was founded entirely upon the mortgage, the same questions are presented under the assignment that the finding is not sustained by the evidence. The evidence discloses that the corn in question was upon a farm recently in the possession of Blahak. About the time the attachment was issued, Blahak absconded. Mack testifies that he was proceeding to take possesion of the corn when the attachment was levied; but nothing is shown to indicate that this proceeding had gone further than an instruction to Mack’s agent to
Under this state of decisions the first question which arises is as to whether the necessity of publication, in order to confer jurisdiction over attached property where the defendant has not been personally served, is a question still open for inquiry? We think it is. Crowell v. Johnson was decided by a united court evidently after a careful consideration of the. authorities. Wescott v. Archer was decided chiefly upon a review of the case of Paine v. Mooreland, 15 O., 435, the court discussing and. disapproving only one of the reasons given by the Ohio court for its judgment, and upon a citation of Millar v. Babcock, 29 Mich., 526, Anderson v. Coburn, 27 Wis., 558, and King v. Harrington, 14 Mich., 532. Of these cases King v. Harrington is the only one which lends any support to the conclusion of the court, the other two cases merely construing statutes quite different from ours. The fact that Judge Lake dissented and cited Crowell v. Johnson, weakened . the authority of Wescott v. Archer at the start; and the fact that in Grebe v. Jones the court retired from its position in Wescott v. Archer, and expressly overruled it in a material point, still further discredited the case. We therefore think that the doctrine of Wescott v. Archer has not been definitively established, and that in view of the conflicting decisions of the court, an inquiry into the merits of the question is demanded at this time.
The precise question under consideration in Crowell v. Johnson and in Wescott v. Archer was not- the legality of the original levy of attachment, but the validity of a sale made in pursuance of a judgment following such levy» For reasons hereafter stated we regard the two questions as inseparably connected, and think that we cannot decide the first without a consideration of the second. There has been much discussion of the second question, but we are
Attachment is, it is true, in this state, a remedy merely ancillary to the personal action, where the defendant is ■ within the jurisdiction of the court and lawfully summoned. At the same time, even in such cases, there is a .distinction between personal jurisdiction so as to permit an adjudication- of the principal action, and jurisdiction of
Reversed and remanded.