Ireland v. Adair

94 N.W. 766 | N.D. | 1903

Coci-irane, J.

This action was to recover the amount of a running account. An affidavit for attachment, containing the statutory requirements, was made, and the proper undertaking for attachment was given and approved. All papers were filed in the office of the clerk of the district court of Ransom county. A warrant of attachment, in proper form,.was issued and delivered to the sheriff of the county, who made the following return of his procedure under the warrant: “I, A. C. Cooper, as sheriff of the county of Ransom, state of North Dakota, certify that the summons, affidavit of attachment, undertaking on attachment, and warrant of attachment herein •came into my hands for service on the 5th day of July, 1902; that I served the same upon C. E. Pearson and Gilbert La Du, as executors under the last will and testament of James Adair, deceased, by leaving with them a true and correct copy of the same; that C. E. Pearson and Gilbert La Du, as executors of the last will and testament of James Adair, deceased, certify under their hands and seals that they hold a sum of money, to wit, $500, belonging to Lillian Adair, defendant.” Nothing further appears from the judgment roll to have been done by the sheriff in execution of his warrant, or in fulfillment of the directions of sections 5631, 5632, 5381, Rev. Codes. Before the issuance of this warrant of attachment, an affidavit for publication of summons was made by plaintiff’s attorney, in which it was stated that the defendant is not a resident of the state; that she has property in the state, and debts owing her from residents thereof. The sheriff’s return upon the summons shows that defendant could not be found and was unserved. The summons was published and proof'of publication made, and, on affidavit of default, a judgment was entered for the amount claimed in the complaint, with interest and costs. This appeal is from the judgment.

Personal service was not made upon defendant in this case, and she did not voluntarily appear. But the jurisdiction of thje court to enter judgment, if any existed, was secured by publication of summons pursuant to the statute. The appellant assails the judgment •as void for want of jurisdiction, on several grounds.

Iff is urged that there was no valid levy of the attachment, and consequently no property of the defendant was subjected to the jurisdiction of the court. The sheriff’s return on the warrant of attachment does not show a valid levy of the attachment upon the $500 due from Pearson and La Du to the defendant, Lillian Adair, because the sheriff did not serve upon Pearson and La Du a notice to the effect that he attached or levied upon the indebtedness. The statute (section 5362,, subd. 4, Rev. Codes) provides that a levy under a warrant of attachment must be made upon personal property not capable of manual delivery by leaving a copy of the warrant and a notice showing the-property attached with the person holding the same, and if it consists of a demand other than bonds, promissory notes, and instruments, for the payment of money, the copy of the warrant and notice showing the property attached must be left with the person against whom, it exists. The lien of the attachment is effectual from the time such levy is made. The property here sought to be subjected to the lien of the attachment, was a debt due to the defendant, and, under the imperative requirements of the statute, could only be attached in the-method indicated. The proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder. Rudolph v. Saunders, (Cal.) 43 Pac. 619; Courtney v. Bank, 154 N. Y. 688, 49 N. E. 54; 4 Cyc. 583, 589. Section 5381, Rev. Codes, requires the sheriff,, when the warrant of attachment has been fully executed, to return the same, with his proceedings thereon, to the court in which the action was commenced. It is his duty to state in his return what acts he-performed in the execution of the warrant, so that the court may decide upon its sufficiency. We must therefore assume that in his return the sheriff stated all he did toward effecting a levy. Sharp v. Baird, 43 Cal. 577; Watt v. Wright (Cal.) 5 Pac. 91; Rudolph v. Saunders, (Cal.) 43 Pac. 619. The sheriff’s return in this case does, not show even a substantial compliance with the statute. It does not disclose the service upon Pearson and La Du, or either of them, of a notice showing the property levied on. This is fatal to the attachment. In Clarke v. Goodridge, 41 N. Y. 213, the court, in construing a statute much like our own, said: “In executing the attachment upon the other kind of property, the sheriff is directed to leave a certified copy of the warrant of attachment with the head or agent of the corporation, or with the individual holding such property, with a notice showing the property levied on. * * * Those words were intended to perform an office, and by them the levy is confined to the items specified in the notice.” Wilson v. Duncan, 11 Abb. Prac. 3; O’Brien v. Ins. Co., 56 N.Y. 52; Courtney v. Bank, 154 N. Y. 691, 49 N. E. 55. In the last case the following language is used : “The delivery of the certified copy of the warrant must be accompanied with a notice showing the property attached. Neither of these requirements can be dispensed with, and have a substantial compliance with the statute.” There being no lawful attachment of property in this case, 'the court was without jurisdiction. Cooper v. Reynolds, 77 U. S. 308, 19 L. Ed. 931; Hartzell v. Vigen, 6 N. D. 117, 69 N. W. 203, 35 L. R. A. 451, 66 Am. St. Rep. 589; Plummer v. Hatton, 51 Minn. 181, 53 N. W. 460. The facts in this case do not bring it within the rule declared in Foster v. Davenport (Iowa) 80 N. W. 404, cited by respondent. Pearson and La Du did not recognize the act of the sheriff as a valid levy, and the certificate that they held $500 belonging to Lillian Adair is not equivalent to a receipt to the sheriff that property is held by them subject to the lien of the attachment, and to be delivered to the sheriff on demand There is nothing shown here upon which an estoppel could be built up in favor of the sheriff and against the executors of James Adair* should he seek to recover from them, claiming right to possession because of an attachment levy.

(94 N. W. 766.)

This renders a reversal of the judgment necessary, and a consideration of further assignments unnecessary. The judgment appealed fiom is reversed and declared void and of no effect. All the judges concurring.