Wales v. Clark, 43 Conn. 183

Wales v. Clark

43 Conn. 183 | Conn. | 1875

Carpenter, J.

The question in this case is one of jurisdiction. Both parties are non-residents, and no personal service was made on the defendant. In such cases the situs of the property attached determines the jurisdiction.

The statute in force at the time of the attempted service of this writ, after providing where suits involving the title to land, &c., shall be tried, is as follows: “ And all other actions which may be brought before the Superior Court, shall be brought and tried in that county where the plaintiff or defendant dwells, if they or either of them are inhabitants of this state; but if neither of them is an inhabitant of this state, then the action shall be brought and tried in the county where the defendant is when the suit is commenced, or, if the defendant is not within this state, where the estate is which is attached.” Gen. Statutes, 1866, p. 17, sec. 80. The officer states in his return that he attached real estate in New Haven County, also in Litchfield County. As the writ was returnable to the Superior Court in Now Haven County, the attachment in Litchfield County may be laid out of the case.

It will appear from the language of the statute above quoted, and it is conceded, that a valid attachment is essential to give the court jurisdiction.

Was there an attachment ? Or, stating the question in another form, can an officer make a valid attachment of real *186estate, before the precept, by virtue of which the attachment is made, is placed in Ins hands ? The statute is as follows : “ Eeal estate shall be attached by the officer’s lodging with the town cleric of the town in which the land is situated, a certificate that he has made such attachment, * * * and said attachment, if completed as hereinafter provided, shall be considered as made when such certificate is so lodged.” The remainder of the section prescribes the substance of this certificate, and provides that the officer shall, within four days thereafter, leave with such town cleric a full and certified copy of the process under which the attachment was made. Gen. Statutes, 1866, p. 4, sec. 17.

This statute was passed in 1855 ; and the lodging of a certificate is a substitute for the old mode of attachment, which was by an entry on the land. The officer who had a writ of attachment to serve went upon the land and that constituted the attachment. The attachment is now made by lodging with the town cleric a certificate, and it is expressly provided that the attachment takes effect when the certificate is so lodged. Under the old statute, an entry without a process was clearly ineffectual; under the present, the lodging of a certificate before the process is received is equally invalid.

The power and duty of an officer depend upon his possession of the process. The latter may bo qualified, or the officer may be relieved of it altogether, by instructions; but it exists only while the power exists, and both come into existence when the process is placed in his hands. Until then he has no authority to act, and cannot be justified in interfering with the persons or property of others.

1't will hardly be pretended that an officer will be justified in malcing-an arrest in a civil suit before lie receives a precept commanding him to do , it; nor can he take personal property in anticipation .of ¡a writ of attachment. In such cases he must be prepared, if his right is challenged, to produce his authority. If he .cannot .do it he is a trespasser and may lie resisted as such.

The land in New Haven County was not otherwise attached than by .the.officer’s lodging with the town clerk the required *187certificate on the day before he received the writ. It follows that there was no valid attachment, and the Superior Court must be advised that it has no jurisdiction of the case.

In this opinion the other judges concurred.