29 Mont. 96 | Mont. | 1903
perepared the opinion for the court.
In this action plaintiff obtained judgment against defendant Burton for the sum of $864.15 and costs, on April 9, 1896, Thereafter, on April 16, 1896, a writ of execution was issued on said judgment, which writ was correct in all respects so far as the questions here .presented are concerned, except that the seal of the court was not placed thereon. C)n May 11, 1896, the sheriff returned the writ with the indorsement that he had made the amount thereof by selling certain real estate of the defendant. On December 22, 1900, the plaintiff served notice on defendant that he would, on December 26, 1900, move the court to amend the writ of execution by ordering the seal to be placed thereon. At the hearing of this motion on said 26th day of December, 1900, the defendant appeared specially by her attorney “for the purpose of objecting to. the jurisdiction of the court to make the order asked for, and upon the further ground that-no notice of the said application had ever been served upon defendant or her attorneys.” These objections were by the court overruled, “and thereupon the court immediately made an order, and had the same entered of record in the minutes, * * authorizing and directing the clerk * * * to attach to the said pretended execution * * * the seal of said court-.” To this action of the court the defend
Tbe first question to lie considered — and which we deem, tbe vital question in this case — is whether tbe writ of execution so issued without the seal was void, or merely voidable. If it were void, it could not be amended, for that- which is void is not tbe subject of amendment. If, however, the writ was merely voidable, it could be amended, provided that the amendment was made within the proper time and in the proper manner.
On this question the authorities are in irreconcilable conflict. One line of decisions holds that the common-law rule that an unsealed writ is void should prevail. The other1 line of decisions maintains that the omission of the seal is a misprision, and may be remedied by amendment. The Code provisions relative to the form and contents of a writ of execution, so far as material here, are found in Section 1211, Code of Civil Procedure, and are as follows: “The writ of execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the c-lerlc, and must be directed to the sheriff, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the sheriff substantially as follows,” etc. Appellant refers to the discussion in Choate v. Spencer, 13 Mont. 127, 32 Pac. 651, 20 L. R. A. 424, 40 Am. St. Rep: 425, as sustaining the contention that the writ in this case is void. The question before the court in that case was- whether a sum-
Under the Wisconsin statutes, courts are required to disregard
In Wolf v. Cook, 40 Fed. 432, — a case originating in Wisconsin, and carried to the federal court, involving the question as to whether the omission of a seal from a writ of attachment rendered the writ void or voidable — the court sa.ys^ in discussing the question with reference to the Wisconsin decision above referred to, and the ease of Insurance Co. v. Hallock, supra:
“It is, however, insisted that, the writ being absolutely void under the rule of the federal court in Insurance Co. v. Hallock, supra, there was nothing to amend. * * Here is a writ that, abiding in the state court, was not void; merely defective, and amendable.. * * By the. simple process of removal of the cause to the federal court because of the diverse citizenship of the parties, that which was valid and effective becomes void. i:' * * The executive officer of the state court, who, prior to the removal of the cause, was justified in the execution of the writ, by the mere act of removal becomes a trespasser ab initio. It would require a precise declaration of superior and constraining authority to require me to hold to such absurdity. I do not so read the decision in Insurance Co. v. Hallock. There no qiiestion of inherent power to amend or of curative statutes was invoked. Indeed, the statute authorizing amendment of process by the federal courts (Rev. St. U. S. 948 [U. S. Comp.
In Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341, the court holds that an order of sale issued without the seal of the court is void. This holding, however, is by reason of the constitutional provision which requires all writs to be issued under the seal of the court. However, in Taylor v. Buck et al., 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346, the court holds that an execution properly authenticated with the seal of the court, but lacking the signature of the clerk, is voidable, and may be amended, and places the decision upon the ground that, while a seal is a constitutional requirement which the legislature cannot alter, the signature of the clerk is a statutory requirement, which may be waived by curative statutes. ■
We recommend that the order in the case be affirmed.
Por the reasons stated in the foregoing opinion, the order appealed from is affirmed.