43 Miss. 197 | Miss. | 1870
This suit was commenced by attachment in the court below, under the Revised Code of 1857, chapter 52, p. 372. The declaration was upon an open account. The defendants did not appear, and judgment by default was rendered against them in favor of the plaintiff, for the amount claimed. The only error assigned, is the insufficiency of the sheriff’s return of service of process, which is in the words and figures following, to-wit:
“ Executed by serving the within attachment, personally,*202 on Thos. Rankin, John Salter, and James Wiley, and levying' on fourteen bales of cotton, the property of defendants, weighing, I suppose, six thousand three hundred pounds; the 30th day of November, A. D. 1867.
[“Signed] Thos. Palmer, Sheriff.
“ By Wm. H. Taylor, Special Deputy.”
Eminent counsel have argued this case elaborately and ably, and for this reason, as well as for the expediency and importance of settling a question upon which leading members of the bar differ so widely and so earnestly, the court has given the subject that mature deliberation which its intrinsic merits demand.
The provisions of the Code under which the attachment was issued, are these: Chapter 52, p. 373, art. 1, provides the remedy by attachment. Art. 2 states before whom oath shall be made, and its contents. Art. 3 directs the issuing of the attachment against the estate of the debtor, returnable to the next term of the circuit court, and that it “ shall be the leading process in the suit.” Art. 4 prescribes the mode of levying upon lands, goods, chattels, debts, etc., and adds, “ If the defendant can be found the said officer shall also summon him to appear and answer the action.” Art. 7 minutely points out the mode of executing the writ, according to the character of the property to be seized, whether real estate, stocks, choses in action, etc. “ And in case of a levy on money, goods or chattels of the defendant, the officer shall take the property into possession,” etc. This article further requires that the officer serving an attachment, “ shall make a full return of his proceedings thereon,” etc.
This is a special and extraordinary proceeding, provided by statute. The rights of one of the parties may be determined without personal service of process, and even without his knowledge. Hence, in all these special proceedings, the provisions of the Code should be strictly adhered to. In the case under consideration, does the return of the sheriff show such an observance of the requirements of the attachment law as to justify the court below in awarding judgment
In what manner did he serve it ? Did he deliver a copy to the defendants ? If not, did he notify them of the time and place of the return of the same ? Did he inform defendants that it was returnable before the magistrate who issued it, or to the circuit court ? Did he state to the defendants, verbally, the substance of the writ? Did he deliver to them the substance thereof in writing ?
These are some of the questions on which the court ought to have been informed by the sheriff’s return before its judgment. The Code, art. 4, quoted above, says the sheriff shall “ summon ” the defendant, if to be found. Did he “ summon ” these defendants ? His return does not say so. Art. 7 referred to requires the sheriff, in case of a levy on goods or chattels, to take the property into possession. Did he do so in this case ? His return furnishes no reply to this question. Art. 7 also requires the sheriff to make a full return of his proceedings on the attachment. Has he done so ? We think not, nor is it even a substantial compliance with the Code. Art. 61, sec. 8, p. 488, says: “ The first process in a civil action, except where otherwise provided, shall be a summons,” etc. “Attachments ” are “ otherwise provided,” and are described in art. 3, before quoted, as “ process,” or “ leading process in the suit.” Art. 63, sec. 8, p. 489, provides that “ the sheriff shall mark on all process the day of the receipt thereof by him, and he shall return the same on the return day, with a written statement of his proceedings thereon,” etc. Art. 64, sec. 8, p. 489, directs specficially the mode of serving “ original process,” on the defendant if to be found, to-wit: both personal and by copy.
From this critical examination of the various provisions of the Code, the conclusion is reached that the return of the sheriff in this case is materially defective, and this result is arrived at independently of numerous decisions of this court, which also sustain the view now taken. In the case of Merritt v. White, 37 Miss., 438, the court held that under the
The case of Jeffries v. Harvie, 38 Miss., 97, was a proceeding by garnishment upon judgment, the return of the sheriff being, “ Executed this on W. P. Russum and Nathaniel Jeffries, the 14th November, 1857 ; ” which the court held to be defective, observing that the process of garnishment upon a judgment “ appears to be rather of a mixed character, partaking partly of the characteristic of final process, and partly of the nature of original process.” As to the plaintiff it is of the former character, being process to have execution of his judgment already obtained against his debtor. But as to the garnishee, it appears to be purely original process, for it is the means by which he is summoned into court to answer to his indebtedn'ess to the defendant in the judgment. It has the same effect upon him, if the proceedings be regular, as if he were sued by the defendant in the judgment upon his indebtedness to him. * * * The garnishment against him is, so far as he is concerned, an original suit to recover a debt, of which he should have as full notice as if the claim was asserted by the suit of his immediate creditor.”
In the case of Roy, garnishee, v. Heard & Simmons, 38 Miss., 544, the return of “ executed,” was held to be “ no service,” but that the appearance of the party in the action was a waiver of such service.
The case of Gates & Pleasant v. Flint and wife, 39 Miss., 365, this doctrine is laid down: “ Personal projjerty cannot be levied on without taking it into the possession of the officer or his agent. The levy being the only foundation of the judgment, in a proceeding by attachment against personal property, if there was no levy, or if the officer never took it into his possession at all, the whole proceedings founded on it were void as to that property.”
Robertson v. Johnson, 40 Miss., 500, was an equity case, brought to this court by appeal; but it was held, 1st. That
Foster et al. v. Simmons et al., 40 Miss., 585, another case in equity, repeats the same doctrine in the following language : “ This court has decided, in the case of Robertson v. Johnson, at April term, 1866, that the rule laid down in the case of Merritt v. White, 37 Miss., 438, in relation to the execution and return of process in the circuit courts, applies in its full force to the process of the chancery courts, and hence, that it is necessary for the sheriff to return a written statement of his proceedings, in the service of a summons in chancery, in order that the court may be able to determine whether the requirements of the law have been complied with.”
In the case of Wolley v. Bowie, 41 Miss., 553, the court say : “ The return of service on the defendant, Ann Wolley, ‘ duly executed,’ was not sufficient to justify the judgment by default, against her.” Sawyer v. Smith, 41 Miss., 554, is to the same effect. Campbell et al. v. Hays, admr., 41 Miss., 561, was an attempt to attack, collaterally, the validity of an administrator’s sale, on the ground of defective return of service of citations. The court, Ellett, J., said: “ But we think it proper to say, that we have not held that judgments and decrees are absolutely void, and may be collaterally impeached, merely on the ground that the return of the service of process is not made in the formal manner prescribed by the statute. On the contrary, we are of opinion that where a judgment by default is taken upon a return which purports to show that the process has been actually executed, such judgment is valid and binding whenever it comes collaterally in question, although defendant might reverse it upon a writ of error, on the ground of the insufficiency of the return.” And the court adds : “ The parties interested have not com
In the case of Crizer and wife v. Gorren, 41 Miss., 563, the suit was commenced by attachment as in the case under consideration. The sheriff returned that he had “ summoned”the defendant, and also that he had “ summoned ” the garnishees, naming each. The writ was issued by a justice of the peace, returnable to the circuit court. At the return term judgment was taken by default against the defendant, and judgment was also entered against the garnishees for want of an answer. Writ of error was prosecuted by the garnishees only. The court declared the return of service as to original defendant defective, but held that it could -not be attacked by the garnishees. The return of “ summoned ” as to the garnishees was also held to be insufficient, and, as to them, judgment was reversed. The court said: “ In regard to attachments as to all other original process, the rules prescribed by arts. 63, 64, Rev. Code, 489, prevail, and the sheriff must show in what manner he executed the writ.”
It will thus be seen to be the well established doctrine of this court, repeatedly uttered, that the return of the sheriff of the service of “ all process ” (art. 63, Rev. Code, p. 489), must contain “ a written statement of his proceedings thereon ; ” that in “ serving an attachment ” (art. 7, Rev. Code, p. 375), h e “ shall make a full return of the proceedings thereon;” and that his “ proceedings ” must conform to the requirements of the Code as to service, etc.
It may be, as suggested by counsel, that in some instances, defendants who have no defense on the merits, will, after judgment by default, take advantage of technical errors to the injury of plaintiffs, honestly striving to collect just debts; but it must be remembered that plaintiffs and their counsel are in fault if they commit mistakes in making up their records. The language of Mr. Justice Handy, who once occupied and honored one of these seats, in a case already referred to, is adopted as the happy expression of the sentiment of this court: “ The return of the sheriff upon process is an import
Article 27, Rev. Code, p. 544, and art. 70, p. 490, have been carefully considered, and it is the opinion of this court that they not only do not, but were not intended to change the rule in question, but were designed to afford increased facilities to parties to protect their rights and to promote the ends of justice.
The prosecution of this writ of error is an appearance in the suit on the part of the defendants.
Judgment reversed and cause remanded.