143 N.W. 348 | N.D. | 1913
Lead Opinion
This is an action for damages for the recovery of $1,011, alleged to have been sustained because of alleged fraud and deceit of defendant in procuring, for the sum of $1,925, the discharge of a real estate mortgage of the face value of $2,996 upon a half section of land in McLean county. The discharge is pleaded to have been obtained through the alleged misrepresentation of defendant, and through the-error, mistake, and ignorance of the plaintiff, known to the defendant to be such. The propriety of the attachment in the particular action is not challenged, and we do not pass thereon. The only questions before us arise upon a motion to dissolve the attachment, made by the defendant under special appearance for the purpose of motion only. Upon the purported cause of action, upon an affidavit for attachment in regular form, reciting the nonresidence of defendant and usual bond, a warrant of attachment was issued and a levy made upon the land. After the filing of an affidavit for publication of summons, reciting defendant’s ownership of property in this state, personal service of the summons, complaint, affidavit, undertaking, warrant and notice of attachment, was had upon the defendant at Rockford, Illinois, at which place defendant has at all times resided. The defendant then moved “for an order setting aside and dismissing the attachment proceedings, and that the action be dismissed on the ground that the court has not acquired jurisdiction of the person of the defendant, and has not acquired jurisdiction over any of the property of this defendant.” This motion was based upon six affidavits and upon “the summons, complaint, attachment proceedings, and all the files herein,” and was made under a notice “that the undersigned appears specially in this action for the defendant above named, for the purposes of this motion only, and for no other purpose.” The affidavits are uncontroverted, and, together with the correspondence and documents exhibited therewith, prima facie establish that the real estate attached and upon which the discharge of the mortgage was procured by the defendant, though standing in his name upon the records of McLean county at the time of the attachment, was in fact the property of a brother and sister-in-law of the defendant, and had been' by them transferred to
Section 6850, Rev. Codes 1905, § 7438, Comp. Laws 1913, provides that “from the time of this service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings.” As the affidavit for and proceedings to obtain the attachment were regular, and on their face sufficient and a compliance with law governing the issuance of tlie warrant of attachment, upon its issuance the court was clothed with jurisdiction under § 6850, Rev. Codes 1905, § 7438, Comp. Laws 1913, over any property of the defendant subsequently attached, and was authorized, by virtue of the attachment, to proceed in rem against such property; and as a step in such proceedings in rem, substituted service, the equivalent of service by publication (Rhode Island Hospital Trust Co. v. Keeney, 1 N. D. 411, 48 N. W. 341), was made by the personal service of the summons and complaint without the state after the filing of the affidavit for publication. After this was done the court had, as against the property attached, and
Research discloses a division of the authorities upon this particular question. The general rule is thus stated in 4 Cyc. 775: “As seizure of property which he does not own can do an attachment defendant no possible injury, it naturally follows that courts have refused to allow defendant to move to quash on the ground that he has no interest in the attached property; but although the reason applies with equal force to foreign attachments, a nonresident defendant has been allowed to show lack of interest in the attached property, to oust the court of jurisdiction.” Citing Schlater v. Broaddus, 3 Mart. N. S. 321; Harris v. Taylor, 3 Sneed, 536, 67 Am. Dec. 576. And this statement in the text has been taken as the author’s opinion in the more recent case of Greenwood Grocery Co. v. Canadian County Mill & Elevator Co. 72
The motion should have been denied. It is therefore ordered that the district court of McLean county vacate its order dismissing the attachment and the action, and that plaintiff recover judgment against defendant for the costs and disbursements on this appeal. Case remanded for further proceedings.
Concurrence Opinion
(specially concurring). I concur in the result of the above opinion, but do not wish to express an opinion on all of the questions involved and discussed. I have no doubt that as a general proposition “a defendant in.an attachment case cannot set up title in a stranger to defeat the attachment levy as on his property.” I am in doubt, however, whether such a rule applies where the defendant holds such property, or claims to hold such property, as a trustee for another. The reason I concur in the opinion is that the question of the ownership is one of the main issues presented by the complaint, and I do not believe that such issue should be allowed to be tried on affidavits and on a motion to quash the attachment.