Lackey v. Seibert
23 Mo. 85
Mo.
1856
Check Treatment
LEONARD, Judge,

delivered the opinion of the court.

The questions submitted to us in this case are, whether the Law Commissioner’s Court of this county may proceed by attachment, and, if so, whether the proceedings here were sufficient to bind the estate of the defendant in the land from the 6th of February, 1854, (the time when the attachment was levied,) so as to conclude a purchaser from him subsequent to that time; and we think both questions must be answered in the affirmative.

1. We refer to the case of Watson against the County of St. Louis, (16 Mo. 91,) for an account of the legislation in relation to this court, from its origin to the year 1851; since which time two other acts have passed, both of the 24th of February, 1853 — one prescribing six terms a year, and the other making the marshal of St. Louis county the executive officer of the court. We may add here that the first section of the act of 1851 declares that the court shall be deemed, to all intents and purposes, a court of record, with all the powers and duties of such a court under the laws of the state; and by the second section, it is always open for the transaction of business, except on Sundays. In the third section, which contains the grant of jurisdiction, “power and jurisdiction” is given, among other things, “ in all actions founded upon contract, when the debt or balance due or damages claimed, exclusive of interest, shall not exceed one hundred and fifty dollars.”

*92In our system of jurisprudence there are no original writs in the English sense of the term. Here, jurisdiction is conferred upon the judicial tribunals by the constitution and laws of the state, and not by original writs, issued for that purpose. Our original writs are mere judicial process to subject the party to the jurisdiction of the court in the particular case, and this process, in ordinary cases, when the suit is for the redress of a civil injury between party and party, is either a summons to be served upon him or an attachment against his property. (Prac. Act, 1845, art. 1, sec. 1.) These are the modes prescribed by the general law of the land for the institution .of suits in courts of record, and therefore, when the Law Commissioner’s Court was made a court of recor!, and clothed with civil jurisdiction in suits between party and party for civil injuries, it acquired, of course, authority, and was bound, to proceed in administering the relief in the manner prescribed by the general law for the government of all such courts. There is not a question about the power of this court at common law, as a court of record, but about its authority an 1 obligation as a court of record, under the statute law of the state, to exercise its jurisdiction in granting the relief which it is authorized to administer according to the general law appliable to all courts of record in similar cases ; and we can not perceive any of the absurdities that it is supposed will result from this construction, nor any difficulty in the way of making it effectual.

2. Although there has been a good deal of discussion in the courts of justice (ex parte Foster, 2 Story’s Rep. 139; Davenfort, v. Tiltan, 10 Metc. 320; Kettridge v. Warren, 14 N. H. 509; Fisher v. Vose, 3 Robinson, La., 457) as to the character and extent of the lien acquired by an attachment, upon mesne process, it is agreed upon all hands to be a valid charge upon the land from the moment the attachment is levied, so that a sale upon the execution relates back to that time, and passes the title to the purchaser, discharged of all encumbrances and dispositions subsequently made by the debtor.

3. The only question, then, for us here is, whether this at*93tachment was lawfully levied on the day indicated in the return. All that our statute (R. C. 1845, tit. Attachment, art. 1, sec. 12) prescribes on the subject is, that “ the officer shall briefly describe the same (the levying of the attachment) in his return, stating the quantity and situation of the land, and declare that he has attached all the right of the party in the same, and shall moreover give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state the fact of such notice and the names of the tenants in his return.” Formerly, this was otherwise. Under the original attachment law of 1807, (1 Terr. Laws, 145,) it was the duty of the officer to go to the place and there declare in the presence of one or more creditable men of the neighborhood, that he attached the property; and, under the act of 1818, (1 Terr. Laws, 601,) he was required to state in his return the names of the persons in whose presence the attachment was levied. This continued to be the law down to the revision of 1835, when the requirement of any act of notoriety, upon the ground or elsewhere, in order'to give publicity to the attachment of the property, was altogether omitted, and the present provision adopted. And the practice, it is believed, has ever since been here, as it is said to be in Massachusetts, (Perrin v. Leverett, 13 Mass. 130,) for the officer, after ascertaining the description of the land, to levy the attachment, by an endorsement to that effect, upon the writ, made by him in his office, or wherever else he might happen to be, without going near the land or calling any witness to the act, which he was at liberty to do in secret. It does not seem to have been the policy of our legislature, in 1835, or since, to require any public notoriety to be given to the levying of the attachment; nor have they provided any guards against the abuses that may occur in these proceedings, on the part of executive officers, by reason of the secret manner in which they are allowed to execute the writs. It is obvious that no purchaser is safe against attachment liens unless he inquire for them of the proper officers, who may have such writs in their hands unreturned¡ or executed and returned to some remote *94county. This evil, however, can only be remedied by the legislature. It existed in the Massachusetts law down to the year 1885, when it was enacted, that, in order to render the attachment valid against a subsequent purchaser for value, or a subsequent attaching creditor, a copy of the writ and of the return of the attachment should be filed in the office of the clerk of the county where the land lay, within three days after the attachment, and that in case the attachment should take effect from the time it was made, but otherwise as against such purchasers and creditors only from the time the copy was so filed. (Rev. Stats. of Mass. 550, secs. 28, 29; Coffin v. Ray, 1 Metc. 212; Taylor v. Mix, 11 Pick. 846; Emerson v. Upton, 9 Pick. 168.) We, however, have no such provision, and under our law, the attachment, when levied, creates from that moment a valid charge upon the land against all persons ; and we suppose it must be taken at least prima facie to have been levied upon the day that the officer returns it to have been done ; and as he here returns it under date of the 6th of February, we must, of course, presume that it was done as early as that day.

4. It is objected, however, that in“order to render the attachment complete, so as to create the lien, it is not enough that the levy be endorsed on the writ, but that it is also necessary that notice of the attachment should be given to the actual tenant, if any, ten days before the return day, and that this fact, together with the name of the tenant, should be stated in the officer’s return. It is to be observed that this notice is not required to be given at the time the attachment is levied, and does not seem to be part of the ceremony required to constitute a levy of the attachment, and adopted in order to give public notice of the fact, but was intended for the benefit of the debt- or, by providing another security, where the proceeding might be without personal notice, against his land being taken from him by a judicial proceeding, of which he had no notice in fact. And we do not think that an omission of this character, in the return, even assuming that there was a tenant in possession, *95ought to be allowed to defeat the sale. Such a construction of these proceedings, founded upon a mere formal matter, without substance, in cases like the present, where there is personal notice of the proceeding, would not be for the interest, generally, of either debtor or creditor, however beneficially it might operate in a single case on account of the peculiar hardship of that case. The judgment is affirmed.