Stoddart v. McMahan

35 Tex. 267 | Tex. | 1872

Ogden, J.

The statute of our State having prescribed a form for a writ of attachment, we are not inclined to the opinion that any other form can be demanded, nor do we think that a party has the right to insist that the attachment shall be any more specific or .descriptive than required by the statutory form. The writ in this cause is almost a literal copy from the •statute, with the addition of filling the blanks, and the court did not err in overruling the motion to quash the same. Nor did the court err in overruling the motion to quash the levy of the attachment, for the reasons set cut in the original motion for that purpose; and indeed the plaintiffs in error appear to have abandoned the -original grounds for the motion as presented in the ■court below, and have argued in this court, to some length and with much force, another ground why the levy of the attachment should have been quashed in the lower court. Counsel for appellee raised the •question whether this court could consider any question, or objection to the proceedings in the lower court, snot made in that court, nor presented by the assignment in this court. But it may be answered, that if the •objections be well taken, it would oust the jurisdiction of that court, and that the proceedings there could -confer no jurisdiction upon this court.

The return of the sheriff, endorsed on the writ of (attachment, was in part as follows: “Received this writ May 18th, 1869, and executed the same May 24th, 1869, by attaching lots number one and four, in block iour hundred and ninety-eight. * * * The aforesaid property was pointed out to me by plaintiff’s attorney, as the property of Robert E. Stapp,” etc. And the plaintiff in error now claims that the levy was without authority of law, and void, because the officer making the same did not certify or return that he had levied on the property of the defendant, and cites the cases of Tiffany v. Glover, 3 Iowa, 390, and Meuley v. Zeigler, 23 Texas, 92. The law regulating original attachments in this State was enacted for the accomplishment of two distinct and different objects and purposes, and authorizes the issuance of that writ under two different statements of facts. First, when the party against whom the writ is sought is absent from the State, or cannot be found, so that the ordinary process of citation cannot be served upon him; in which case an attachment may issue against the property of a defendant in order to force an appearance, either actual or constructive, in court, to answer the complaint or demand then preferred against him. Second, when suit has been brought against a party, and he has been notified of the same, by service of citation, but who is> attempting to avoid the payment of a just demand by placing his property out of the reach of the law; in which case an attachment may issue, directing the seizure of that property, to be held for the satisfaction of such demand when established by a judgment of the court.

In the first case, the attachment is intended to supply the want of personal service of an ordinary citation, and the law directs that the writ shall be served upon the property of the defendant, which service shall operate as constructive notice to the defendant of the; pendency of the suit. This certainly is a rigorous rule-of construction, sanctioned only by the positive enactments of the Legislature, to which the doctrine of presumptions should not be applied, and therefore the law authorizing such an extraordinary proceeding, and every act of the officers in the execution of the same, should be most strictly construed and scrutinized. It follows, that when the officer levying an attachment, which was issued for the purpose of giving the court jurisdiction of the person and property of the defendant, has faded in any particular to comply with the law, the jurisdiction does not attach, and all subsequent acts must of necessity be void. It is by the levy and return of the sheriff that the jurisdiction of the court attaches, and therefore, if he should fail to attach the property of the defendant, or fail to make a return specifically that he had attached the property of the defendant, his acts would fail to give the court jurisdiction, and no presumption could be brought to bear to cure the defect or validate any action of the court by virtue of the levy. (Clay v. Nelson, 5 Randolph, 596; Irons v. Allen, Hardin’s Ky. R., 44; Anderson v. Scott, 2 Mo. R., 15; Bradford v. Gillespie, 8 Dana, Ky. R., 67.)

In the case of Tiffany v. Glover, the court says: “It is only by the return that the court is advised of the levy, and special judgment and execution can only be-awarded upon sufficient levy, and this must be ascertained by the officer’s return.” The doctrine as announced in that case is believed to be the law when applied to attachments issued for the purpose of giving the court jurisdiction; but we are unwilling to adopt the decision in that case, or the decision of our own court in Meuley v. Zeigler, if intended to apply to all cases of attachments, regardless of the purpose for which the same were sued out.

Whenever suit has been commenced against a party, and a regular summons or citation has been served. upon him, then he is, or is properly supposed to be, in court, to defend his interests and protect his property; and therefore any act of the court, or of any officer of the court, would be entitled to every presumption of fairness and legality; and when an attachment is sued out under such circumstances, for any of the causes specified in the statute, supported by the affidavit of the party applying for the same, the presumptions, if any, are changed in favor of the plaintiff, and against the defendant. In such a case the attachment is simply an auxiliary process to prevent a fraudulent disposition of the defendant’s property, and to secure the payment of a just debt, and, as suggested by counsel, bears a strong analogy to an execution before judgment. And when issued as auxiliary to a suit pending, an attachment is no more rigorous in its effects than an execution after judgment, and should be subject to no more rigid or stringent rules. In the dissenting opinion of Justice Greene, in Tiffany v. Glover, he says: “The great object of the attachment law is to protect creditors against fraudulent and dishonest practices, too often resorted to by debtors. * * * It follows, then, that the law should receive such a legitimate consideration from the courts as would best secure the objects for which it was enacted.”

In the cause at bar the attachment was sued out as a collateral, and not a direct proceeding to give jurisdiction to the court of the person and subject matter in controversy. And the plaintiff now seeks a reversal of the judgment, because of the defective return of the sheriff, in not stating definitely that the property attached was the property of the defendant. This question, among others, was raised in the case of Meuley v. Zeigler, but as it was not the controlling question in that case, it may be that the learned judge who delivered the opinion did not consider it necessary to give it that thorough investigation which usually characterized his able opinions. In that cause the court, in following the decision in Tiffany v. Glover, came to the conclusion that the return of the sheriff was too indefinite and uncertain to create a lien upon the property attached, as against a purchaser without actual notice of all the proceedings. We have carefully examined the decision of the court in 8 Iowa, and the dissenting opinion of Justice Greene in the same case, as well as the case of Rowan v. Lamb, in 4 Iowa, 468, directly overruling the decision in Tiffany v. Glover, and we are forced to the conclusion that the doctrine as laid down in Tiffany v. Glover, and Meuley v. Zeigler, when applied to an attachment issued as an auxiliary process in a suit where the jurisdiction had attached, cannot be sustained by reason or authority.

In the case at bar, the defendant was in court by virtue of the service of an ordinary citation, and the attachment was issued as an auxiliary writ, to prevent the fraudulent disposition of property. The defendant does not deny the right of the plaintiff to the writ. If, therefore, the attachment was served upon his property, he has no right to complain, whether a return was made by the officer or not. But if the officer, in violation of the direct command of the writ, has levied on property not the defendant’s, he is responsible to the owner of the property, and the defendant will not be injured thereby. The law provides that the attachment shall be levied on the property of the defendant, but it gives the sheriff no judicial power to determine the •question of ownership, and when the property is levied upon, the law gives the party claiming the same a specific proceeding for the trial of the right of property, in which the return of the sheriff has no peculiar significanee. From these and other considerations, the general rule in regard to the execution and return of .attachments as an auxiliary process is, that all presumptions are in'favor of the regularity of the acts of the officer. (Paine v. Mooreland, 15 Ohio, 435; Redusv. Wofford, 4 Smedes & Marshall’s R., 579; Ritter v. Scannel, 11 Cal. R., 238; Rowan v. Lamb, 4 Iowa, 408; Morgan v. Johnson, 15 Texas, 568; Mesner v. Hutchins, 20 Texas, 597; and Hill v. Cunningham, 25 Texas, 25.)

But it is contended with much reason, that as the-statute prescribes no particular form for the return of the sheriff, and as the writ commands him to attach the property of the defendant, therefore a return that he had executed the writ by levying upon certain property, the inevitable conclusion would be, that the officer intended to return that he had attached the property of defendant. (Johnson v. Moss, 20 Wend., 147.) Weave therefore of the opinion that the return of the sheriff in this case was sufficient to hold the property levied upon, and that the court did not err in overruling the motion to quash the levy and return.

The force of the exception to the ruling of the court in relation to the testimony of Hobby is not perceived, since what the defendant might have said to a third person after the assignment was made could not be legitimate testimony to affect that assignment; and even if the testimony had been admitted, and had been true, it would have changed the assignment, if at all, only to limit his interest in the firm of Stoddart & Burk to $15,000. The testimony of Thomas was also correctly ruled out by the court. The execution of the partnership articles, and the recognition of a subsisting partnership long after the execution of the articles had been proven, and the defendant Stapp’s assignment of Ms interest in the firm, one year after the partnership articles had been executed, had established the fact of a subsisting partnership, and the proof, without time or place, of a single assertion of two of the partners that the scheme should be or was abandoned, could not have changed the facts already proven. The conversation might have been intended to deceive the public or some individual, but was inadmissible to disprove the clear admissions of the party, made in a solemn act of assignment.

The question of the effect of the assignment of Stapp to McMahan was not raised in the court below, nor any rulings of the lower court in relation thereto complained of in the assignment of errors, here, as errors, and therefore need not be further noticed here.

The rulings of the court in relation to the intervention of Lydia J. Stapp were erroneous; she had a right to intervene for the protection of her homestead, and the court erred in sustaining plaintiff’s demurrer to her plea of intervention. The remititur afterwards entered, and the judgment of the court decreeing to her the homestead to the full extent claimed, cured that error as to the homestead, and the judgment of the lower court will not be disturbed in that respect. But this court is not unanimous in opinion as to what should be the proper order of this court in relation to the intervenor’s claim for damages. In my opinion, the judgment of the district court should be affirmed in all things, and leave the intervenor to prosecute an independent suit for damages, as she certainly would have a right so to do, provided she thought proper. But as a majority of the court think she should have been heard on her plea of intervention for damages in this case, the judgment of the lower court in that respect will therefore be reversed, and the cause remanded; but in all other respects be affirmed.

Ordered accordingly.