51 Kan. 62 | Kan. | 1893
The opinion of the court was delivered by
The judgment rendered in favor of the National Bank of St. Joseph against J. H. Schaeffer and Simon C. Peters, as partners, under the style and firm of J. H. Schaeffer & Co., and the attachment proceedings in such action, were in all respects regular, so far as proceedings in rem were concernedand the judgment in the case was and is obligatory upon the debtors, J. H. Schaeffer and Simon C. Peters, as J. H. Sehaeffer & Co., and their privies. Where there is a seizure and detention of property, ora garnishment under an attachment proceeding, the court has jurisdiction therein with limited notice and effect. Notice being limited to the debtor, the attached property being proceeded against only as his, and the judgment being against it only as such, the debtor and his privies are concluded. All who are par
■ In the case of the bank against J. H. Schaeffer & Co., upon the service stated in the record, the court acquired jurisdiction over the property seized. Thereafter, it had jurisdiction to hear and decide whether J. H. Schaeffer and Simon C. Peters owed the bank the amount claimed, or any part thereof. It also had jurisdiction to sell the attached property for any sum found due. The interest in the property that Peters obtained by virtue of his alleged prior attachment was not and could not be attached, and was not and could not be condemned, but all the proceedings in the case of the bank against Schaeffer and Peters were upon the theory that Schaeffer and Peters were indebted to the plaintiff as alleged, and the property attached was subject to seizure and sale as the property of Schaeffer and Peters. No personal judgment could be rendered against Peters, because there was no personal service obtained upon him, and no appearance, but Peters was and is as much concluded by the attachment proceedings and judgment, as to the property attached and sold, as if he had been personally served or personally appeared. So long as the attachment proceedings and judgment in the ease of the bank against Schaeffer and Peters were not reversed, vacated, or appealed from, Peters could not, in a collateral proceeding, question or impeach, by ex parte affidavits or otherwise, the status or sale of the property seized. (Paine v. Spratley, 5 Kas. 525; Rowe v. Palmer, 29 id. 340; Pritchard v. Madren, 31 id. 51.) Herman on Estoppel and Res Judicata, p. 371, says:
“When the court has jurisdiction, its proceedings are in rem after publication, which constructively notified the defendant of the proceedings against the property. The court adjudicates upon the property, the thing itself, and orders it sold, or delivered to the plaintiff in payment of his debt. The judgment changes the status of the property or debt. It de*69 prives the attaching defendant of all title to it, and is binding and conclusive upon all the parties to the proceedings.” (Voorhees v. Bank, 10 Pet. [U. S.], 449; Cooper v. Reynolds, 10 Wall. 309; Rudolf v. McDonald, 6 Neb. 166.)
As the trial court had jurisdiction of the subject-matter in the bank against Schaeffer and Peters, and jurisdiction to seize and sell the property attached, such property, after being seized and sold as the property of Schaeffer and Peters, cannot be subject to further controversy by either of the parties, excepting upon an application for a vacation of the judgment, or other direct proceedings to set aside or reverse the same. If it were competent for Peters, in the proceedings to determine the priorty of the attachment liens, to show by ex parle affidavits that he had no interest in the property attached by the bank which was seized and sold as his property, then Schaeffer had also the right to make proof in the same way, and show that he had no interest in the property seized and sold. The result would be, that upon ex parte affidavits in collateral proceedings, after seizure, judgment, and sale, such judgment and all proceedings thereunder might be set aside and vacated. If such were the law, attachment proceedings against nonresidents might be wholly abortive.
The judgments of the bank against Schaeffer and Peters were rendered on the 17th of November, 1888, and the 11th of March, 1889. A motion to settle the priority of liens was heard on November 27, 1889. At that time Peters personally appeared. If he had desired to open up the judgments under which his property had been seized and sold, he had notice in time to have done so under the provisions of § 77 of the civil code. Therefore, if any injustice were done Peters by the attachment proceedings or judgment in the case brought by the bank, he had an ample remedy under the provisions of the statute. He did not pursue this remedy. We think the trial court erred in admitting as evidence the ex parte affidavits. Our conclusion therefore is, under the facts disclosed, that Peters has no claim whatever, by attachment, prior proceedings, or otherwise, to the property seized and sold as his
There is some discussion in the briefs about the possession of certain books of account by the sheriff. Such indebtedness can only be reached by garnishment proceedings, but it appears from the record that the trial court so ruled. The orders of the district court fixing the priority of liens are hereby reversed, and further proceedings are directed in accordance with the views herein expressed.