Doolittle v. Shelton

| Iowa | May 15, 1848

Opinion by

Kinney, J.

This was an action of covenant commenced by Shelton against Doolittle by an attachment in rem, and judgment was rendered in personam. The error assigned and relied upon by plaintiff is, that the court rendered judgment against the defendant in personam,.when it should have been against the property attached only.

The statute, after prescribing the, manner of publication in cases of attachment, where service has not been had upon the defendant, states that if the defendant do not appear as there - in required, the final judgment thereupon entered shall be conclusive, so far as regards the property attached. Rev. Stat. P- 81, §24. _ '

_ We think this statute clearly defines the rights of the parties, and prescribes the duty of the court in the rendition of judgments in cases of attachments, when the defendant has not been served with process.

The plaintiff resorts to his remedy by attachment. Service is not had upon the defendant, and the statute-we think has wisely confined the plaintiff to his own remedy, by limiting him to a judgment against the property attached. If he were permitted to take his judgment against the person, great injustice might be done to the defendant, who has not had any opportunity of'making his defense.

In the case of Wilkie v. Jones, Morris, 97, the same point' Involved in this case has been decided, and as we think correctly. Although the decisions of the territorial supreme court are not conclusive authority in this court, yet we are not disposed to disturb them unless clearly erroneous, and more particularly those decisions made upon questions growing out of the statute, settling principles by which parties have b een governed in their business relations.

But it is urged by counsel for defendant in error, that if the judgment below was erroneous, yet this court can render such a judgment as the court below ought to have rendered, ^(a) The statute has clothed this court with such discretion; but in this case where the defendant, by the nature of the remedy, has not had any opportunity of making a defense, it might do great injustice to exclude him from making his defense, which would be' the result of rendering such a judgment as the court below ought to have rendered.

Judgment reversed.

(a) See Laws of 1844, p. 9, § 81.