| Colo. Ct. App. | Jan 15, 1896
Lead Opinion
delivered the opinion of the court.
On the 8d day of January, 1893, O. F. Mentzer brought suit in the district court of Arapahoe county, against L. Filberg, to recover an alleged indebtedness of $609, and caused a writ of attachment to he issued and levied upon the property and effects of the attachment defendant. On the same day the appellees, Ellison & Sons, commenced their action against L. Filberg, and sued out and levied an attachment upon the same property. The levy of the appellees was subsequent to that of Mentzer: The affidavit upon' which the writ.in Mentzer’s case issued was as follows:
“ State oe Colorado, ) In the District Court of “ County oe Arapahoe, j ss' Arapahoe County.
“ O. F. Mentzer, “ Plaintiff. uvs. “ L. Filberg, N > “ Defendant.
AFFIDAVIT IN ATTACHMENT,
“ O. F. Mentzer of said county, being duly sworn, doth depose and say that L. Filberg against whom the said O. F. Mentzer is about to sue out an attachment, is indebted to him in the sum of six hundred and nine dollars, and that the said demand is due and wholly unpaid.
“ O. F. Mentzer.
“Sworn and subscribed to before me this third day of January, A. D. 1893.
“ Matt Adams, Clerk.
“ By G-. S. Richards, Deputy.”
On the 5th day of January, L. Filberg filed a verified answer to the complaint of Mentzer, admitting the indebtedness to him as stated, and authorizing judgment to be entered
The complaint sets forth the affidavit upon which the attachment was issued, averring that b}r reason of its insufficiency the attachment was void, alleging also that the pretended indebtedness was fictitious, that the note purporting to evidence it was not signed by L. Filberg, and that the suit was commenced, the attachment issued, and the judgment entered in pursuance of a fraudulent conspiracy among these defendants. From the admitted facts it appears that the defendant, Adolph F. Filberg, who signed the name of L. Filberg to the note, had ample authority to do so; there was no proof or admission of fraud; and the court very properly found these issues against the plaintiffs. But the court further found that the affidavit was insufficient to authorize the issuance of the writ, and adjudged the attachment void as against the plaintiffs, awarding precedence to the plaintiffs’ attachment. From this judgment the defendants appealed.
The sole question for determination is whether, as between these plaintiffs and these defendants, there was such an attachment of the property of L. Filberg at the suit of Mentzer as to give him the right to prior satisfaction of his claim out of the attached property. The attachment defendant, by waiving all objection to the proceeding and consenting to judgment, could not afterwards, herself, attack the affidavit for insufficiency, and as against her the attachment would hold the property; but did her waiver of her own
The following are sections 92 and 117 of the code :
“Sec. 92. No writ of attachment shall issue unless the plaintiff, his agent or attorney, or some credible person for him, shall file in the office of the clerk of the court in which the action is brought, an affidavit setting forth that the defendant is indebted to such plaintiff, stating the nature and amount of such indebtedness as near as may be, and alleging any one or more of the following causes for attachment, viz.: ” Here follow the grounds of attachment.
“Sec. 117. No writ of attachment shall be quashed nor any garnishee discharged, nor any undertaking given by any person or persons under proceedings by attachment be rendered invalid, nor any rule entered against a sheriff, discharged on account of any informality or insufficiency of the original affidavit, or of the original undertaking given for the attachment, if the plaintiff or the plaintiffs, or some credible person, or his or their agent, or attorney for him or them, shall file a sufficient affidavit in the cause ; or if the plaintiff or plaintiffs or some credible person, or his or their agent or attorney for him or them, shall make with such security as is required by this act, an undertaking to be approved by the court in which said suit may be pending, and when a writ of attachment shall be held to be defective, the same shall be allowed by the court, to be amended in such time and manner as it may direct, and thenceforth the suit shall proceed as if such defective proceedings had been originally sufficient.” * * *
The question before us involves the consideration of the purpose of the affidavit, the conditions under which it may be amended, and the right of subsequent attaching creditors to question its validity. If, when property is attached,- there is no service of summons upon the defendant and no appearance by him to the action, the proceeding is purely in rem. The jurisdiction of the court is confined to the property attached, and, if the attachment fails, there is nothing for the
An affidavit is an essential prerequisite to the issuance of a writ of attachment. The statute is prohibitory in its terms. It provides that no writ shall issue except upon affidavit filed. The jurisdiction of the court in attachment proceedings depends upon the affidavit, and if none is filed the attachment writ and all proceedings under it are void. Hargadine v. Van Horn, 72 Mo. 370" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/hargadine-v-van-horn-8006612?utm_source=webapp" opinion_id="8006612">72 Mo. 370 ; Wright v. Smith, 66 Ala. 545" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/wright-v-smith-6510794?utm_source=webapp" opinion_id="6510794">66 Ala. 545; Eads v. Pitkin, 3 Iowa, 77; Manley v. Headley, 10 Kan. 88" court="Kan." date_filed="1872-07-15" href="https://app.midpage.ai/document/manley-v-headley-7883124?utm_source=webapp" opinion_id="7883124">10 Kan. 88; Waples on Attachment, 76.
But the affidavit may, in essential particulars, fall so far short of the statutory requirements that it cannot be regarded as an affidavit for attachment. Two statements of fact are required in the affidavit, and each is indispensable : It must allege an indebtedness from the defendant to the plaintiff; it must also aver the existence of one of the grounds upon which the statute authorizes an attachment. A mere indebtedness gives no right to an attachment; nor does the fact alone that the defendant has placed himself in some position which, by the terms of the statute, would authorize his creditors to proceed against him by attachment. A man to whom he owes nothing cannot attach, and neither can a man to whom he is indebted when there is no statutory cause for attachment. The affidavit must combine the allegation of indebtedness with the allegation of cause. If either is entirely absent, there is no more power to issue the writ than if there were no affidavit at all. Napton, J., in Bray v. McClury, 55 Mo. 135 ; Dickenson v. Cowley, 15 Kan. 269" court="Kan." date_filed="1875-07-15" href="https://app.midpage.ai/document/w-b-dickenson--bro-v-cowley-7884048?utm_source=webapp" opinion_id="7884048">15 Kan. 269; Updyke v. Wheeler, 37 Mo. App. 680" court="Mo. Ct. App." date_filed="1889-12-02" href="https://app.midpage.ai/document/updyke-v-wheeler-6616122?utm_source=webapp" opinion_id="6616122">37 Mo. App. 680; Miller v. Brinkerhoff, 4 Denio, 118" court="N.Y. Sup. Ct." date_filed="1847-01-15" href="https://app.midpage.ai/document/miller-v-brinkerhoff-5465370?utm_source=webapp" opinion_id="5465370">4 Denio, 118; Waples on Attachment, 104.
The affidavit in this case sets forth no cause whatever for attachment. As a statement of indebtedness, it is defective in failing to give the nature of the indebtedness; but if the statement of indebtedness had been coupled with a ground of attachment, so as to be an affidavit for attachment, this defect might have been remedied by amendment. But there being no cause for attachment alleged, the want could not be supplied by amendment; there was no authority to issue the writ, and no lien was obtained upon the goods by its service. It is true that the attachment defendant, by consenting to the attachment, and confessing judgment, has
We have been referred to some eases, decided by the supreme court of California, in which it was held that proceedings in attachment could not be collaterally questioned where by proper amendment, while in progress, they might have been made regular. We have examined these cases and find no disharmony between them and the general, current of authority. We find in them the same distinction as elsewhere between proceedings which are voidable merely, and" those which are absolutely void. The former cannot he avoided collaterally; a subsequent attachment creditor cannot avail himself of their irregularity ; hut the general doctrine that void proceedings can be assailed at any time, and at the suit of any person interested, is not questioned. In Dixey v. Pollock, 8 Cal. 570" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/dixey-v-pollock-5433531?utm_source=webapp" opinion_id="5433531">8 Cal. 570, the lien of an attaching creditor was adjudged of no effect as against that of one who attached subsequently, on the ground that the first attachment was invalid for jurisdictional reasons. See, also, Mudge v. Steinhart, 78 Cal. 34" court="Cal." date_filed="1888-12-29" href="https://app.midpage.ai/document/mudge-v-steinhart-5443860?utm_source=webapp" opinion_id="5443860">78 Cal. 34.
It is further contended that the remedy of the plaintiffs is not in equity. Counsel have not advised us of any legal remedy at the plaintiffs’ command, and none occurs to us. The attachment defendant hastened to confess judgment long before she was required to appear, leaving the plaintiffs no time to intervene in that action, even supposing that intervention by them would have been proper. We think the facts bring the case within the jurisdiction of a court of equity, and that the plaintiffs have not mistaken their remedy.
•In conclusion, counsel say that the plaintiffs’ injunction operated as a release of errors in the attachment proceedings.
The judgment will be affirmed.
Affirmed.
Bissell, J., concurs.
Dissenting Opinion
dissenting.
I regret that I am compelled to dissent from the majority opinion in this case. A proper regard for the views of my learned associates requires me to state the grounds of such dissent.
I. I cannot adopt the construction of the statute as construed by my learned associates, nor the reasoning by which the conclusion is reached that the affidavit for the attachment was a nullity and the affidavit void. He says: “ There must, before the writ can issue, be an affidavit filed, and it must set forth an indebtedness, so as to bring the plaintiff within the class of persons in whose favor an attachment is allowed.” It is not contended that the affidavit was not sufficiently full in this respect. Cursory examination will show that it was. He continues: “It must also allege the existence of some
I have carefully examined the learned opinion to ascertain from it' what, in the opinion of my associates, the affidavit lacked, but failed to find it. The affidavit states the indebtedness, the amount, that it is overdue and unpaid. The statute at that time made an overdue promissory note gi’ound
II. It is said in the opinion that the sole question for determination was the validity and consequent priority of' the Mentzer attachment. As the controversy in this case is entirely in regard to the goods attached, and the record disclosed the fact that, by personal service of summons, the proceeding was in personam as well as in rem, and the attachment only auxiliary, this not being an attachment against a nonresident, I fail to see tiie relevancy and importance of the discussion in regard to proceedings in rem and in personam. It is said: “ The jurisdiction of the court in attachment proceedings depends upon the affidavit, and if none is filed the attachment writ and all proceedings under it are void; ” and several authorities from other states are cited in support of the proposition. The fact is shown by the record that by personal service of writ of attachment and summons, the proceeding was both in rem and in personam, and the attachment, as in all cases of that character, was only auxiliary. I can find ndthing in the cases cited making them applicable to the question in controversy.
As proceeding by attachment is purely statutory, it would have been far more satisfactory had some authority been found construing our statute or a similar one, and holding the affidavit in this case void and equivalent to none at all, but none such are presented. It is said the affidavit must combine the allegation of indebtedness with the allegation of cause,” and several authorities are cited in support. Test the affidavit by this, we find the indebtedness stated definitely, and the cause, “ overdue and unpaid,” which was sufficient under the statute. Here are both debt and cause stated. That the indebtedness was evidenced by a promissory note
III. Proceeding, the opinion say»: “ We have been referred to some cases, decided by the supreme court of California, in which it was held that proceedings in attachment could not be collaterally questioned where by proper amendment, while in progress, they might have been made regular. We have examined these cases and find no disharmony between them and the general current of authority. We find in them the same distinction as elsewhere between proceedings which are voidable merely, and those which are absolutely void,” etc. It will be seen that the whole decision is based upon the assumption that the proceeding was absolutely void. Our statute was bodily imported from California. Its construction by the courts of that state are authoritative, if not conclusive. I fear, from the hasty generalization above given, that the examination of those decisions was too cursory, and that they cannot be so easily disposed of. It appeal’s to be the well settled law of that state that the sufficiency of the affidavit and the regularity of the attachment proceedings cannot be questioned and raised collaterally by one not a party to the proceeding.
Porter v. Pico, 55 Cal. 165" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/porter-v-pico-5439746?utm_source=webapp" opinion_id="5439746">55 Cal. 165, the court held: “ This lien was not affected by any irregularities in the attachment itself, nor was it destroyed by the judgment rendered in the attachment suit. Any irregularities in obtaining it were waived by the defendant to the suit when he appeared and answered, without taking advantage of them by motion or otherwise, in the course of the proceedings. The procéss is merely auxiliary, and the judgment in the action cures all irregularities.”
In Scrivener v. Dietz, 68 Cal. 1" court="Cal." date_filed="1885-11-19" href="https://app.midpage.ai/document/scrivener-v-dietz-5442283?utm_source=webapp" opinion_id="5442283">68 Cal. 1, an almost identical question in regard to the irregularity of the affidavit was presented. The court said: “ Notwithstanding the infirmity, the attach
In the opinion, Dixey v. Pollock, 8 Cal. 570" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/dixey-v-pollock-5433531?utm_source=webapp" opinion_id="5433531">8 Cal. 570, and Mudge v. Stienhart, 78 Cal. 34" court="Cal." date_filed="1888-12-29" href="https://app.midpage.ai/document/mudge-v-steinhart-5443860?utm_source=webapp" opinion_id="5443860">78 Cal. 34, are cited; and, in regard to the first, it is said that the lien of the first attaching creditor was adjudged of no effect as against that of a subsequent attaching creditor, on the ground that the first attachment was invalid for jurisdictional reasons. The citation and statement are liable to mislead, unless the case is examined. The learned judge who wrote the opinion seems mistaken. There were three attachments against the same defendant, in all of which plaintiffs had recovered judgment, — first, Adams v. Pollock; second, Pollock v. Pollock ; third, Dixey v. Pollock. In the first there was an irregularity in the papers. In the lower court it was held fatal, and judgment awarded to Pollock, plaintiff. Dixey, the third, appealed, and the supreme court held that the irregularity in the first papers (Adams Case) was not fatal, reversed the judgment in favor of Pollock, the second, and gave it to Adams, the first attaching creditor, using the following significant language: “ When the contest is between creditors, all the equities are in favor of the most diligent. The subsequent execution or attachment creditor can claim no equitable relief. * * * And it is well settled that a stranger cannot interfere upon the ground of irregularity.” A case more fatal to, and at variance with, the conclusions reached, can hardly be found.
An examination of the case of Mudge v. Stienhart, 78 Cal. 34" court="Cal." date_filed="1888-12-29" href="https://app.midpage.ai/document/mudge-v-steinhart-5443860?utm_source=webapp" opinion_id="5443860">78 Cal. 34, cited, will show nothing in line or in common with the questions here presented. The defendant was nonresident; the proceeding purely in rem ; was in an action of tort. The court held: First, that attachment was purely statutory, and could have no force except in the cases provided by the statute ; second, “ the existence of a contract, express or implied, is an essential basis, without which no writ of attachment can properly issue, and as in this case the action was foimded
It is said in the opinion, “ The two sections [92 and 117] must be construed together, and in harmony with each other, as parts of the same act.” I can see nothing incompatible in the two sections that needs construction or requires the affidavit to be held void in order to harmonize the sections. Section 92 is a general statute, and sets forth what the affidavit shall contain in order to render the attachment effective against the chattels of the defendant. If the requirements are not complied with, defendant may move to quash. Then the special statute, section 117, declares that the proceedings shall not be quashed by reason of irregularity and insufficiency, if plaintiff shall amend and reform the affidavit, and the authorities are conclusive that the matter is confined entirely to the parties. If the defendant overlooks or disregards the defects, he waives them, and can legally do so, as in case of any other waiver, and the judgment cannot be attacked by outsiders.
IV. There was a fatal defect in proof, as well as in the complaint, — no allegation that the attachment of appellees was valid, that it was ever levied upon the goods in controversy or upon anything else, nor is there any such fact stipulated. The record shows that appellees made no proof nor offered any evidence whatever of any attachment proceedings, nor any judgment. The whole thing rests upon the
V. The question of the jurisdiction of the court of equity to declare a judgment at law void, and substitute and give precedence and priority to another supposed judgment alleged to exist, has not, in my opinion, received that careful attention that its importance requires. It briefly says: “ Counsel have not advised us of any legal remedy at the plaintiffs’ command, and none occurs to us. The attachment defendant hastened to confess judgment long before she was required to appear, leaving the plaintiffs no time to intervene in that action, even supposing that intervention by them would have been proper. We think the facts bring the case within the jurisdiction of a court of equity, and that the plaintiffs have not mistaken their remedy.” What facts are referred to as bringing the case within the jurisdiction of a court of equity ? Certainly not the haste of the defendant
The entry of a judgment at law and the issuing of an execution, and the declaring it void and substituting another, were in the same court, by different judges, and affords a curious commentary on the administration of the law; and the fact, as stated in the opinion, that appellees had no legal remedy, would not confer jurisdiction upon a court of equity. It is far from the fact that a court of equity has jurisdiction because the plaintiff may allege that he has no remedy at law. There are numerous cases like the present, where parties have no rights that can be enforced in either equity or at law.
In reviewing actions at law, the court of chancery is confined in very narrow limits. The law is clearly and’concisely stated in 2 Story’s Eq. Jur., secs. 1570 to 1575, and is so at’ variance with the views of my associates, I cannot refrain from quoting from section 1573: “ In matters where the jurisdiction of the courts of law and equity is entirely concurrent, the adjudication of the court of law is conclusive upon courts of equity. And a court of equity will not interfere to relieve a party from such adjudication except upon the ground of newly discovered matter since the trial; of fraud in obtaining the judgment; or of some inevitable accident or mistake.” Section 1575: “It seems tobe conclu
In Drake on Att., sec. 262, it is said that for irregularities in the proceedings, “ other attaching creditors cannot make themselves parties to the proceedings for the purpose of defeating them on that account. Nor will a bill in equity lie in favor of a junior attacher to set aside a senior attachment on the ground of insufficiency of the affidavit on which it was issued; ” citing numerous authorities. And see Fridenberg v. Pierson, 18 Cal. 152" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/fridenberg-v-pierson-5434701?utm_source=webapp" opinion_id="5434701">18 Cal. 152; Dixey v. Pollock, 8 Cal. 570" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/dixey-v-pollock-5433531?utm_source=webapp" opinion_id="5433531">8 Cal. 570; McPherson v. Snowden, 19 Md. 197" court="Md." date_filed="1862-12-05" href="https://app.midpage.ai/document/mcpherson-v-snowden-7891611?utm_source=webapp" opinion_id="7891611">19 Md. 197; Buckley v. Lowry, 2 Mich. 418" court="Mich." date_filed="1852-01-15" href="https://app.midpage.ai/document/buckley-v-lowry-6631212?utm_source=webapp" opinion_id="6631212">2 Mich. 418; Curtis v. Stewert, 36 N. J. L. 304; Thompson v. Meek, 3 Sneed, 271; Danaher v. Prentiss, 22 Wis. 311" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/danaher-v-prentiss-6599874?utm_source=webapp" opinion_id="6599874">22 Wis. 311; Nelson v. Turner, 2 Md. Ch. 73" court="None" date_filed="1850-03-15" href="https://app.midpage.ai/document/nelson-v-turner-6683060?utm_source=webapp" opinion_id="6683060">2 Md. Ch. 73.
The only allegations in the complaint that could confer jurisdiction on a court of equity were that the suit of Mentzer against Filberg “ was commenced unjustly and without foundation,” and that no indebtedness existed, and that, “ for the purpose of defrauding her creditors and the plaintiff,” etc., she colluded with plaintiff and others, and confessed judgment, etc. These charges were abandoned and no proof offered in support of them, and the court below found the debt valid. After such finding the court was, under the authorities, divested of jurisdiction for any purpose whatever, — powerless to afford injunctive relief, which was the only relief it could have granted, had the charges of fraud and collusion been sustained. I have been unable to find a case where a court of equity with concurrent jurisdiction assumed the right to review and retry a case, and set aside a judgment at law, where either fraud, collusion, accident
Leaving out all the legal questions above discussed, on the pleadings, and with no proof, the court was without jurisdiction- or power to recognize the claim of appellees, — much less subrogate a prior judgment to it.