| Neb. | Jul 15, 1883
Lead Opinion
On the 30th day of November, 1872, the plaintiff recovered a judgment against the defendants in the district court of Douglas county for the sum of $1,083.26 and costs. The action was brought upon a joint obligation, and the defendants being non-residents of the state, an attachment was levied upon lands in Douglas county belonging to Pier, and service was had by publication. In December, 1882, Pier filed a motion in said court to set aside the judgment for want of jurisdiction in the court rendering it. The motion was sustained, to which the plaintiff excepted, and now assigns the ruling on the motion for error.
The first objection to the validity of the judgment is that the affidavit for the attachment is fatally defective in not stating that the defendants had property in this state subject to attachment.
Sec. 199 of the Code provides that an affidavit for an attachment may be made by the plaintiff, his agent, or attorney, showing the nature of the plaintiff’s claim; that it is just; the amount which the affiant believes the plaintiff ought to recover; and some one of the grounds for an attachment- enumerated in section 198.
Second. That no bond was filed. One of the grounds for the attachment against Pier was that he was a non-resident of the state, and this under our statute is a ground of attachment, no bond being required.
Third. That the return does not describe the property. The return, among other things, contains the following statement: “Received this writ June 18th, 1872, and on the next day I went to the places where the within named defendant Pier’s property was, and there in presence of E. X. Dillon and P. H. Reed, two residents of said county, I did declare that by virtue of this writ, I attached said property at the suit of Henry Grebe, sheriff, and then and there, together with said residents, who were first duly sworn, I made a true and impartial appraisement of the property attached, and said appraisement duly signed is herewith returned,” etc.
The appraisement contains a full description of the property attached, and the return shows beyond question that the property described therein was the property levied upon. And in our opinioh the description is sufficient. But even if it was not, the court, in furtherance of justice, even now would permit the return to be amended to conform to the facts. Such amendment, however, is unnecessary.
Fourth. It is urged that the affidavit was fatally defective for the reason that: 1, It fails to show that Pier was a non-resident of this state; 2, Because it fads to show that Grebe had a good cause of action against Pier; and 3, because it does not appear therein that the cause is one of those mentioned in sec. 77 of the Code. The affidavit was made by the attorney for Grebe and it is alleged therein “that service of summons cannot be made in the above entitled cause upon either of the above named defendants, Ryland
It is unnecessary to state..a cause of action in the affidavit against the party sought to be served by publication. All that the statute requires is the oath of the plaintiff, his agent or attorney, that service of summons cannot be made within this state on the defendant or defendants to be •served by publication, and that the case is one of those mentioned in sec. 77 — that is, that the defendant to be .served by publication has property within the jurisdiction -of the court, in which the plaintiff claims an interest either by attachment or otherwise. When these facts are made to •appear, service may be had by publication. As sufficient nppears in the affidavit to show these facts it is not void.
The fifth objection is that the notice does not contain a -description of the property attached. The notice is as follows: “ToRyland Jones, William H. Pier, and Patrick .J. McNamara, non-resident defendants. Take notice that Henry Grebe, sheriff of Douglas county, Nebraska, plaintiff, did on the 18th day of June, 1872, file in the district-court of the state of Nebraska, in and for Douglas county, his petition praying judgment against you for the sum of $985.22, and interest from Nov. 13th, 1871, and ■caused an attachment to be issued and levied upon your property in this state. Said action is brought upon an undertaking in replevin given in a certain action commenced in the above named court on the 12th day of.' April, 1870, by Ryland Jones against the above named plaintiff and signed by the above named defendants, in which said action judgment was rendered against the said Jones for the sum of $934.14 principal, and $51.08 costs.
“ T. W. T. Richards,
“ Attorney for Plaintiff.”
In Wescott v. Archer, 12 Neb., 345" court="Neb." date_filed="1882-01-15" href="https://app.midpage.ai/document/wescott-v-archer-6643448?utm_source=webapp" opinion_id="6643448">12 Neb., 345, it was held that where an attachment is levied upon the property of -a nonresident, and service of summons is not made upon him,, the court possesses no power to render judgment against him and order a sale of his property to satisfy the same-unless publication has been made as required by law, and that the notice should contain a description of the property attached. In the argument of that case it -was strenuously contended by the attorneys for the defendant in error that, no notice whatever was necessary; that the court by the-levy of the attachment acquired jurisdiction, and without a, hearing could condemn real estate, and transfer the latter from the actual owner to the purchaser under the attachment, citing in support thereof, Paine v. Moreland, 15 Ohio, 435. That notice of the pendency of an action against a non-resident, by which it is sought to divest him of his property and transfer it to another, must be given to him in some mode, there can be no doubt either upon principle or authority, and all that is said in Wescott v. Archer as to the necessity of such notice we fully adhere-to. And it is good practice to describe the property attached ; but if this is not done, but the defendant is notified that an action has been commenced in a court and county named”, to recover judgment for a specified amount against him, and that his property has been attached in that action,, it is pretty clear that the notice is not void. If the property attached is within the county where the action is pending, and the description in the notice, although general in its terms, includes the property in controversy, the-notice is 'not void. In such case the description is sufficient to cover all the defendant’s property in the county where the action is pending, -and differs materially from a.
Reversed AND remaNded.
A motion for a re-hearing was overruled at the January term, 1884.
Dissenting Opinion
dissenting.
While I agree with my brethren, that the judgment of the court below should be reversed, and, substantially, with all that is said in the majority opinion on the first four propositions, I most respectfully dissent from what is said respecting the “fifth objection.”
The struggle of the writer of that opinion to hold fast to a remnant of the pernicious rule announced in Wescott v. Archer, 12 Neb., 345" court="Neb." date_filed="1882-01-15" href="https://app.midpage.ai/document/wescott-v-archer-6643448?utm_source=webapp" opinion_id="6643448">12 Neb., 345, is lamentable and to be regretted, as that decision is founded neither on the philosophy of the code nor a correct principle of statutory construction. If, under our system of procedure, such an action as was there considered were commenced by an attachment of property, the rule clung to with so much tenacity would be reasonable. But such is not the case.
In this state all civil actions in the district courts are commenced by filing a petition, and the issuing and service of a summons on the defendant. And if personal service cannot be given, it may in certain actions be made by a publication of notice to the defendant, which serves the purpose of an ordinary summons. Code of Civil Procedure, §’§ 62, 77. And such notice will be entirely conformable to the requirements of the statute if it contain a
Thus it is seen that all the statute requires of the notice-in addition to the name of the court is, “ the object and. prayer of the petition.” And what these are one would naturally suppose should be determined by reference to the-petition itself. But who would expect to find in a petition for the recovery of a money judgment a statement that an order of attachment had been or would be issued and levied on a particular piece of property, or,- indeed, on property generally, of the defendant.
Under our system of procedure an attachment, as a means of satisfying a judgment, is essentially a collateral proceeding, and being so, a defendant who is notified, either personally or constructively, of the commencement of tire-main action, has notice also, or rather is bound to take notice at his peril, of all steps subsequently taken therein, including the attachment of property.
Suppose for instance that A sues B for the recovery of a. simple money judgment, both being residents of the same county. There is no thought then of an attachment of' property in the action, for no cause therefor exists. After service of the summons upon him, and before any other step is taken in the case, B removes from the state and becomes a non-resident, which, under the statute, is a ground of attachment. Thereupon A, discovering that B has left property within the jurisdiction of the court, files an affidavit of Bis non-residence, sues out an order of- attachment,, and has the property seized under it. Will it be contended in such case that B is entitled to a special notice, by publication or otherwise, of the attachment of his property to make it valid? And yet he has had no notice whatever of the attachment except such as followed from having been, been notified of the commencement of main action.
I have said that the,rule of Wescott v. Archer is pernicious, and it is so, even as modified in the majority opinion in this case, in this, that it not only invalidates a practice .of our courts which before that case was decided had prevailed to a greater or less degree of not including in the notice of publication a description of the property seized,, either particular or general, but also tends to stir up strife and litigation respecting titles to property, supposed to have' been settled by that practice, which not only had the approval of the undivided opinion of this court in Crowell v. Johnson, 2 Neb., 146" court="Neb." date_filed="1873-07-01" href="https://app.midpage.ai/document/crowell-v-johnson-6641766?utm_source=webapp" opinion_id="6641766">2 Neb., 146, but of the supreme' court of Ohio. (Paine v. Moreland, 15 Ohio, 435), under a statute not essentially different from our own.
Eor these and many other reasons that might be given,, I feel compelled to dissent from so much of the majority opinion as is above indicated.