113 P. 326 | Utah | 1911
An application is here made for a writ of mandate. Tbe H. L. Griffin Company on tbe lOtb of Mareb, 1908, filed a verified complaint in tbe municipal court at Ogden — a court wbicb, for all purposes of tbis proceeding, may be denominated a justice court — against George A. Yander-becb, wherein it was alleged that “tbe plaintiff purchased from tbe defendant one car load of onions at Toledo, Ohio, and paid therefore tbe sum of four hundred and eighty-seven dollars; that said defendant undertook and agreed to load tbe said onions in a car and to properly pack them so that they could be safely transported to tbe city of Ogden; that said defendant carelessly and negligently lined said car with paper and failed and neglected to provide proper ventilation for said car, by reason of wbicb said onions became spoiled and unmarketable,” to plaintiff’s damage in tbe sum of two hundred dollars. An affidavit for attachment was filed, wherein it was averred that tbe defendant' was. indebted to tbe plaintiff in tbe sum of two hundred dollars upon a contract, and that tbe defendant was a nonresident. A writ of attachment was issued and property of tbe defendant consisting of money in tbe sum of two hundred and ten dollars was seized at Ogden. There was no personal service, but a publication of summons. On tbe 29th of June, 1908, tbe default of tbe defendant was entered and upon tbe evidence adduced on behalf of tbe plaintiff a judgment was entered against tbe defendant for tbe sum of two hundred dollars and eight dollars and seventy cents costs, and tbe attached property proceeded against in satisfaction thereof. On tbe 22d day of July, 1908, tbe defendant served and filed a written motion and notice, in wbicb be stated that be appeared specially for tbe purpose of tbe motion, to vacate and set aside tbe judgment on tbe ground that tbe court, when tbe judgment was entered, bad no jurisdiction of bis person nor of bis property. Tbe motion was argued by counsel for tbe respective parties
The district court evidently proceeded on the theory that in the complaint a cause of action in tort and not on contract was alleged; and since the statute permitted an attachment of property to satisfy an indebtedness or demand on contract only, and not in tort, the municipal court was not authorized to issue the attachment, and for that reason the district court dissolved it. It then dismissed the action on the theory that since there was no service on the defendant within the jurisdiction of the court, and no appearance made by him before judgment, a seizure of property of the defendant within the jurisdiction of the court upon a writ of attachment properly issued on an indebtedness or demand on contract was essential to confer jurisdiction on the municipal court to proceed and render a judgment, which proceeding in such case became a proceeding in rem, and since the municipal court improperly issued the writ, and was with
The ruling made hy the district court dissolving the attachment is not reviewable by us, on a proceeding
A proceeding to enforce the payment of a debt or demand by attachment against the defendant’s personal property within the jurisdiction of the court partakes
Erom what has been said by us it necessarily follows that the municipal court had jurisdiction to issue the attachment and to render the judgment which was rendered by it. When the defendant took the general appeal from that judgment to the district court, undoubtedly that court acquired whatever jurisdiction was possessed by the municipal court. When it dissolved the attachment its power to proceed against the property was gone. Here, then, is it strenously asserted that since the action was in re to and the res gone, the jurisdiction of the court to further proceed in the case was also gone, it being urged that the defendant’s appearing in the municipal court and seeking to set aside the judgment, and subsequently talcing a general appeal from the judgment and the whole thereof to the district court, did not constitute such an appearance in the case as to give the district court jurisdiction of his person so as to render a personal judgment against him. If that be true, then the district court divested itself of jurisdiction by an erroneous decision involving jurisdiction not depending upon facts, but solely upon a" misconception of the character of the complaint and-of the law. But the dissolution of the attachment, whether right or wrong, did not divest the court of jurisdiction to further proceed. The defendant’s appearance in the municipal court seeking to set aside the judgment was denominated by him a special appearance only for such purpose. Of course, such an appearance would not relate back and cure any want of jurisdiction which might have existed at the time of the entering of the judgment. Still,
What was the jurisdiction here invoked by the general appeal of the defendant? To merely try and determine the question whether the attachment was properly issued and the property lawfully seized? If the district court should have held against the defendant on that question, was he not also entitled to have fully tried and determined the question of indebtedness, and his personal obligation and liability with respect to it? We thirds so. By the taking of such an appeal he caused the judgment of the municipal court to be vacated and the whole case transferred, and the pleadings, all notices, motions, and other papers filed in the case, and a certified copy of the docket, transmitted to the district court there to hear and try the whole case de novo. We need not now inquire into the question of whether the defendant under the statute could have taken a special appeal on a question of law alone as may be done under the California statutes, nor as to the effect of such an appeal with respect to an appearance, nor the questions to be tried and determined on that kind of an appeal, for such an appeal was not taken. Nor is it necessary to determine the effect
In this view of the case the seizure and control of property of the defendant was not essential to the jurisdiction of the district court to proceed. It undoubtedly had, as did the municipal court have, jurisdiction of subject-matter, and it by the general appearance having acquired jurisdiction of the person of the defendant, its jurisdiction to proceed did not depend upon the ruling dissolving the attachment. Such ruling, under such circumstances, constituted mere error not reviewable and not capable of correction in this proceeding. Our mandate, therefore, will not issue to reinstate the attachment. It will, however, issue to reinstate the case and to require the district court to assume jurisdiction and to proceed with the cause. It is so ordered. No costs allowed.