36 Minn. 190 | Minn. | 1886
1. Appellant cites numerous authorities to the effect that, where a defendant is a non-resident who has not been •served with process, and who has not appeared in the action, it is the fact alone that he has property in the state subject to attachment-that enables the court to obtain jurisdiction. This is elementary, but it is not necessary to state that fact in the affidavit for attachment. The statute does not require it. Gen. St..1878, c. 66, § 147. Such an allegation would serve no good purpose, for the mere existence of property within the state does not give the court jurisdiction. The proceedings, although in form in personam, are in effect in rem; and it is only by attaching the property that the court acquires jurisdiction, and then only to the extent of the property attached. If no property be found on which to levy, there is nothing to which the jurisdiction can attach, and the court could proceed no further. Wade, Attachm. § 70; Drake, Attachm. § 5; Cooper v. Reynolds, 10 Wall.
2. Appellant claims that the writ of attachment was void because issued by the same person, as deputy-clerk of the district court, who. allowed it as court commissioner, the person assuming to hold both, offices at the same time. The contention is that the two offices are so incompatible that the acceptance of one by the incumbent of the other operates, ipso facto, to vacate the latter. There is no express incompatibility created by the constitution or by statute. To render two offices incompatible at common law, so that the acceptance of one would, ipso facto, vacate the other, the functions of the two must be inconsistent, as where an antagonism would result in the attempt by one person to discharge the duties of both offices. But where one office is not subordinate to the other, and the relations of the one to. the other are not repugnant and inconsistent, then the two are not, incompatible. People v. Green, 5 Daly, 254; s. c. 58 N. Y. 296. We can see no ground for holding these two offices incompatible at, common law. The one is not subordinate to the other, and neither-officer can interfere with or has any supervision over the other.. There is no such inconsistency in the functions of the two offices as. would necessarily prevent one person from properly performing the duties of both.
3. It is the settled doctrine of this court that, as between a plaintiff' who claims title under a transfer from the debtor and a sheriff in. possession under a valid process against the debtor and in favor of' the creditor, upon a simple issue of ownership, it is competent for-the sheriff to prove any fact tending to impeach the validity of the. transfer as against the creditor. Tupper v. Thompson, 26 Minn. 385, (4 N. W. Rep. 621;) Furman v. Tenny, 28 Minn. 77, (9 N. W. Rep., 172.) Therefore, under his denial of plaintiff’s title and his allega-, tion of property in the debtor against whom the writ of attachment ran, it was competent for defendant to prove that the transfer from the debtor to plaintiff was fraudulent and void as to creditors. It
This disposes of all appellant’s assignments of error, except the sixth and seventh, which were not urged upon the argument, and therefore we do not feel called upon to discuss them further than to say that, in our opinion, the instructions excepted to state the law correctly.
Judgment affirmed.