40 Mo. App. 113 | Mo. Ct. App. | 1890
Lead Opinion
This is a suit by attachment, brought in the Pettis circuit court March 29, 1887; and at the May term following a change of venue was taken to the Johnson circuit court, where the cause was subsequently tried, and, judgment being rendered for plaintiff, defendants have appealed to this court. The matter at issue relates to the attachment proceedings in the cause.
On March 29, 1887, when the action was commenced, the plaintiff filed with the clerk of the Pettis circuit court the following paper, intending the same, evidently, as an affidavit for attachment. We copy the paper here:
“State of Missouri, “County of Pettis,
ss.
“Albert Parker, president of the Third National Bank of Sedalia, Missouri, being sworn for, and in behalf of, said bank, the plaintiff herein, on his oath says: That the plaintiff in the above entitled cause •has a just demand against the defendants' therein, which will become due on the eighteenth day of May, A. D. 1887, and that the amount which this affiant believes the plaintiff ought to recover, when the same becomes due, is two thousand dollars; and that this affiant has good reason to believe, and does believe,that the defendants have fraudulently conveyed and
“ Subscribed and sworn to before me this -th day of March, A. D. 1887.
“Filed in the office of the clerk of the circuit court of Pettis county, Missouri, on the twenty-ninth day of March, 1887.”
The transcript was filed in the Johnson county circuit court June 13, 1887, and, on the same day, Y. E. Shaw, an attorney for the plaintiff, and in the plaintiff’s behalf, made and filed an attachment affidavit (in lieu of the paper above quoted) and which, too, seems in proper form, signed and sworn to.
On October 20, 1887, defendants filed their motion to quash the writ of attachment issued on the twenty-ninth day of March, 1887, for the following reasons:
First. Because at the time of the issuance, of said writ of attachment there had been filed no affidavit setting forth the grounds of the attachment filed in this cause, as required by the statutes, and that said writ of attachment and attachment proceedings, by reason thereof, are null and void. Second. Because said attachment proceedings are null and void upon their face.
In opposition to this motion, plaintiff submitted the affidavits of Mr. Shirk, plaintiff’s attorney, Albert Parker, president of the plaintiff corporation, and M. W. Brady, the deputy clerk of the Pettis circuit
I. In calling for this extraordinary relief by attachment, whereby the power of the state is brought into action to seize on, and hold to, the assets of an alleged debtor until the creditor may, or may not, establish his claim, the law has imposed on him, seeking such aid in advance of a judgment in his favor, the giving a bond to secure defendant in case of wrongful attachment; and, further, to guard against indiscreet action as much as possible, the party asking the writ is required to file his .affidavit (or the affidavit of some one for him) as to the nature and justice of his claim, as well as to allege therein the ground, or grounds, of - attachment. It is, therefore, repeatedly, and very properly, held that this affidavit is an indispensable prerequisite to the issue of the writ of attachment. Without such affidavit, no court, or clerk thereof, has authority, or jurisdiction, .to' command, in the state’s name, the seizure of a defendant’s property. If, then, when the writ of attachment in this case was issued on March 29, 1887, there was not present, filed with the clerk, an affidavit for attachment, as the law requires, the issue thereof was wholly unwarranted, void and without jurisdiction, If, however, there was an affidavit, but defective, then it might be amended, and would support the writ.
In Hargadine v. VanHorn, supra, Napton, J., speaking for our supreme court, uses this language : “In the present case there was no affidavit at all, that is, the paper described and referred to by the clerk as the one upon which the writ of attachment issued was not signed by any one, and was, therefore, no affidavit.” It seems in the Hargadine case there was a jurat attached, signed by the officer administering the oath, and that Judges Sherwood and Norton dissented. But even they, in a dissenting opinion, made no claim, or remark even, suggesting that such a paper as we have here could be deemed an affidavit. In his dissenting opinion, Judge Sherwood says : “It is the official certificate which gives authenticity to the written oath, and not the signature of the affiant.” While,then, the entire court agreed to the necessity of the jurat, signed by the officer, three insisted on a like necessity of the affiant’s signature to the paper to make an affidavit justifying an attachment.
In the case now under consideration the paper filed with the clerk as an affidavit for attachment is possessed of neither of the above requisites, It is signed by no affiant, nor authenticated by any officer authorized to administer oaths. It is nothing more, in effect, than a blank piece of paper wanting in every ingredient characterizing an affidavit. And, whatever may be the opinion of the minority in the Hargadine case, the majority of the court then- held that a paper
For the error, then, of the trial court in overruling the motion to quash the writ of attachment, the judgment is reversed and the cause remanded.
Rehearing
ON MOTION NOE REHEARING
I. On a reconsideration of this case we see no reason to withdraw from the position already taken, and must adhere to our former' holding, to the effect that no jurisdiction in the attachment ever attached by the issue of the writ herein, for the reason that no affidavit for attachment was filed prior to the
II. Plaintiff’s counsel, however, insists, that, even to admit that the writ of attachment was issued in the absence of an affidavit, yet that defendants waived the necessity thereof by appearing and pleading to an affidavit, subsequently filed in the court. We cannot concur with counsel on the position thus taken. It is well understood that, in the matter of jurisdiction over the person, a defendant may appear in court and submit himself to the jurisdiction thereof in the face of defective, or even void, process; and that he cannot thereafter complain of such want of process, since he will be deemed to have waived the necessity thereof. However this rule has no application here, in a proceeding in its nature in rem — where the court seeks by its process to bring the thing in court, with the purpose of subjecting such thing to the payment of plaintiff’s claim. It is an extraordinary process, and the statute law has provided a means whereby the res may be brought into the jurisdiction of the court. The presence or absence of the defendant in the suit has nothing to do with the presence or absence of the attached property. In other words the defendant may be present and yet the defendant’s property absent, or not within the court’s jurisdiction. Johnson v. Gilkeson, 81 Mo. 59. For example, a suit may be pending against a defendant who has been brought in by process, or who has appeared voluntarily and without process, yet if an attachment against his property is sought, in aid of such suit, the same affidavit is required to warrant the court in issuing the attachment writ, as if sued out in the beginning of the litigation. R. S. 1889, sec. 533. The presence of an attachment affidavit is made an absolute, indispensable prerequisite to the court’s jurisdiction to issue the writ. “The issue of the writ of attachment is a movement in
In our opinion then the writ of attachment, issued in this cause, was an attempted process without jurisdiction. The court did not thereby acquire jurisdiction over the subject-matter. It was a void proceeding.from the beginning, and, as jurisdiction never attached, advantage thereof could be taken at any time. Henderson v. Henderson, 55 Mo. 534. And since the court never acquired, under the law, jurisdiction of the subject-matter, consent of parties cannot confer jurisdiction. Bray v. Marshall, 66 Mo. 122; Baker v. Railroad, 36 Mo. 543; Fields v. Mohey, 78 Mo. 176.
Ellison, J., concurring, the motion for a rehearing-is, therefore, denied.
Dissenting Opinion
(dissenting). — I. Although I concurred in the opinion in» this case, as is therein stated. I have become satisfied by further examination and reflection, that I erred in so doing, and I shall make this the occasion for changing my front in respect thereto, and for stating the reasons which have induced the change of conviction.
The question now is, whether this triparted affidavit for the attachment, with two specified parts thereof omitted, was a proper subject of amendment in the circuit court upon the application of the plaintiff for that purpose. It seems to me that the’ action of the court in allowing the amendment to be made was fully authorized by the statute — section 445 — which provides that attachments in courts of récord may be dissolved on motion made on behalf of the defendant at any time before final judgment in the following cases : First. “When the affidavit upon which the same is founded shall be adjudged insufficient; but no such attachment shall be dissolved, in such cause if the plaintiff file a good and sufficient affidavit to be approved by the court in such time and in such manner as the court shall direct; such affidavit may embrace the same ground of attachment as set forth in the previous affidavit, or any other grounds, or both at the option of the affiant.” This statute is remedial, and
En passant, it may be remarked, that the statutes authorizing garnishments apply to actions by attachments. Middleton v. Frame, 21 Mo. 412. Now, if there was appended to the plaintiff’s petition, an affidavit for an attachment, though insufficient — lacking in two essential parts — could the court, in the face of the statutory interdict, refuse to permit “the plaintiff to file a good and sufficient affidavit?” Musgrove v. Mott, 90 Mo. 107.
In Norton v. Flake, Adm’r, 36 Mo. App. 698, it was said, “the defendant’s contention is, that the first affidavit being insufficient to confer jurisdiction, that it could not be amended. It may be well questioned whether .the first branch of this contention is true, and, if so, whether or not the broad and comprehensive provisions of the statute do not authorize in express terms the exercise of the power of amendment in such case. The statute has made no distinction as to the power of amendment of affidavits for attachment.” “In State ex rel. Crain v. Lyon, 51 Mo. 114, it was held that a justice of the peace, who has under the statute precisely the samé power with respect to amendments of affidavits for attachment as courts of record, may, after judgment in an attachment suit, allow an amendment of an affidavit to be made so as to authorize the seizure of property otherwise exempt.” As was said in Norton v. Flake, Adm’r, supra, “the question of the sufficiency of affidavits to confer jurisdiction has generally arisen in proceedings collaterally attacking judgments rendered thereon, and in such cases the question is sometimes very close and of great nicety, but in cases like this, when the proceeding is an' original one, no reason appears why it should be so narrowly scanned where it is simply sought to amend it. The object of the law, no doubt, is in cases where there is a defect of
Again in respect to the affidavit it may be remarked that the statute nowhere requires it to be signed by the affiant, and in the absence of such requirement it would not be defective on account of not being signed. If the proper affidavit for attachment required by the statute is accompanied by the certificate of the officers before whom it is made, then it is complete. It need not be signed by the affiant. This is non-essential. Smith v. Benton, 15 Mo. 371; Soswell v. The Church, 46 Mo. 276; Crum v. Elliston, 33 Mo. App. 591.
In Hargadine v. Vanhorn, 72 Mo. 370 (see dissenting opinion of Sherwood and Norton, JJ.) it is said: “Under the statute an affidavit performs the same office in an action by attachment, as it does in that of replevin.” The analogy is indisputable, and in the latter action we have held that an unsigned affidavit may be amended and that no question of jurisdiction arises in permitting such omission to be supplied by the amendment. Crum v. Elliston, supra. So that an unsigned affidavit is not defective for that reason, or if it is, then it is amendable.
Now then the affidavit in question is insufficient in only one essential particular and that is as to the signature of the attesting officer, before whom it was made, as to his certificate. His certificate was complete in every respect. Now in Bergesh v. Keivil, 19 Mo. 127, which was an action of replevin where the affidavit required by the statute was signed by the plaintiff but was without the jurat — the certificate of the officer
Whatever there is in Bray v. McCluey, 55 Mo. 128, and Burnett v. McCluey, 78 Mo. 676, that may be thought to conflict with the views herein expressed is disapproved of by a unanimous court in Burnett v. McCluey, 92 Mo. 230. In Owens v. Johns, 59 Mo. 89, there was no written oath at all, no affidavit required by the statute. There was, however, the j tor at of the clerk appended to the petition. It was held that there was nothing to amend ; while this case decides nothing adversely to the views I have expressed, it may be well questioned whether the rulings there have not been touched upon by the provisions of the statute and some of the prior and subsequently decided cases of that court. It seems to me that if full force is given to the language employed in the opinion in that case, that it will be found to practically contravene the express provisions of the attachment statute, section 445, and the general statutory provisions of allowing amendments. In any view which I have been able to take of this case, I have been unable to discover that any error was committed by the circuit court in permitting an amended affidavit to be filed by the plaintiff.
II. But there is still another ground which may be urged in support of the action of the trial court, and which I think is impregnable. The sufficient affidavit filed by the plaintiff in the first instance stated a perfect statutory ground for an attachment. Now, if we ignore the existence of the second, or amended, affidavit,