Merrit v. City of St. Paul

11 Minn. 223 | Minn. | 1866

By the Oou/rt

Berry, J.

It has heretofore been decided by this court, that a warrant of attachment issued by a clerk, without an allowance thereof hy a judge, is unauthorized, and so far as parties situated as these appellants are concerned, void. Morrison v. Lovejoy, 6 Minn. 183; Zimmerman v. Lamb, 7 Ib. 423; Guerin v. Hunt, 8 Minn. 487.

It follows that the appellants who instructed the sheriff to make the particular levy complained of, under the warrant in question, acted without authority or justification, and were, therefore, trespassers. Kerr v. Mount, 28 N. Y. 665. The demurrer was rightly overruled. It is, however, urged, that by proceeding to trial on the merits without objection to the attachment, the respondent waived the want of the allowance, and that such want was an irregularity which ^íould have been taken advantage of by a seasonable motion to vacate the warrant under Section 161, page 553, Pub. Stat, by which it is provided that “the defendant may also, at any rime before the time for answering expires, apply on motion to vacate the warrant of attachment.” The section is inapplicable; for here the warrant was void, and there was nothing to be vacated. It is further said, that the warrant was sued out in strict Compliance with the letter of a statute, and though this statute has been determined to be repugnant to the Constitution, yet that neither parties nor attorneys ought to be held responsible for its unconstitutionality. It is not to be denied that there may be occasional hardships in upholding such responsibility, but to do otherwise would be to allow ignorance of the law (for it can make no difference whether this be constitutional or statutory) to excuse a trespass. Kelly v. Bemis, 4 Gray, 84.

The order overruling the demurrer is affirmed, and the cause remanded.