First National Bank of Hennessey v. Hesser

*119 Opinion of the court by Gillette, J.: No question is raised in the record touching the validity of plaintiff’s mortgage or of plaintiff’s right of possession thereunder, of the property sought to be taken in replevin, so far as the owner and mortgagor, G. W. Baker, is concerned. This action was replevin, brought by the plaintiffs to recover from the defendant the property mortgaged by Baker to plaintiff. The case presents a question of right of possession as between plaintiff and defendant Hesser, who was at the time sheriff of Payne county, and claimed the right of possession by force of two orders of attachment against the property of Baker, issued out of the probate court of said county. The cause was tried in the district court of Payne county in December, 1902, resulting in a judgment for the defendant Hesser, requiring the plaintiff to return to defendant all the property of G. W. Baker taken under the two attachments in default of payment to him of $140.00, the amount found by the probate court to be due in the two actions against him in that court. If the defendant at the time of bringing this action, May 13, 1901, was legally holding the property covered by plaintiff’s mortgage, under valid process issued by the probate court, he was entitled to continue the possession until the lien acquired thereby was lost, or the property was disposed of by force of it, or the. lien secured thereby was satisfied, for the reason that plaintiff’s mortgage was executed in Kingfisher county, where the mortgagor, Bakerj then, resided, upon property then located in Payne county, and *120 which said mortgage had not, at the time the property was taken on attachment, been filed for record in Payne county. Such mortgage for want of record in Payne county was, at the time, void as to creditors and innocent purchasers. (Greenville National Bank v. Evans Co., 9 Okla. 353.) The correctness of the determination of the district court is challenged first upon the ground that no valid process is, by the record, shown to have been in the sheriff’s hands, at the time the plaintiff demanded the property under, and by virtue of its mortgage. Such process was issued by the probate judge of Payne county in two cases: viz,: Dix v. G. W. Baker and Pink Taylor, and second: Millikan v. G-. W. Baker, each of which was brought to recover a sum less than $100.00 and in each of which cases an attachment was issued against the property of defendant therein, G. W. Baker, under and by force of which the defendant herein ITesser, sheriff, claimed the right of possession. In such cases the probate judge acts with the jurisdiction of a justice of the peace and is governed by the procedure applicable to such jurisdiction. See Sec. 2, Art. 15, Chap. 18, Statutes of 1893. The actions in the- probate court against Baker at the time they were brought were actions in personam, and in the Dix ease being rightfully brought against G-. W. Baker and Pink Taylor, Taylor being a resident of Payne county, service first had upon him in that county, authorized service against Baker in Kingfisher county. The action in this case was therefore rightfully brought in Payne county, and the probate judge had jurisdiction to issue the order of attachment in that case upon the filing of the necessary affidavit and proper bond. • *121 It is contended by tbe plaintiff that the transcript from .the probate court offered in evidence in this, the Dix case, does not show such compliance with the law governing justice of the peace procedure as to give the act' of the probate judge issuing the process relied upon in this (Dix) .case, any validity whatever. It is true that sec. 4835, Statutes of 1893, requires a justice of the peace to keep a docket in which he must enter at the time of its occurrence, the title of the case, the date of the writ, the time of the return, and if an attachment issued that fact should be stated, together with the affidavit rxpon which such order was made, etc., all of which requirements were by the probate court ■disregarded and not complied with. It is unquestionably true that cases may arise, wherein the existence of such record becomes necessary to be shown; but is this that kind of a case? The issue here is the question of the lien of the attachment and the date such lien went into effect as against the property in question. It was therefore only necessary to show a valid lien, that the attachment was issued from a court having jurisdiction and that the same when issued was based upon sufficient authority tiled with the court in compliance with the law in such cases to justify its issuance, and if so issued the person securing it and a levy thereunder, would not lose the lien secured thereby upon the property attached, because of the fact that the justice ■of the peace or the probate judge failed to make satisfactory docket entries of the proceedings before him. In this case it is shown that Mr. Dix, on the morning of April 16, 1901, ■procured from the probate court of Payne county an order *122 of attachment against the property of G-. W. Baker, and secured the same by filing in said court the affidavit and bond required by the law, and such attachment was immediately levied upon a portion of the property involved herein. Afterwards, on the same day, the plaintiff herein demanded possession from the sheriff of all’ of Baker’s property, including the portion so levied upon, the sheriff having the key to the room in which all of the property was-situated. The plaintiff, the Hennessey Bank, had a right to such-possession at the time of this demand as against the mortgagor Baker, but not as- against the defendant Hesser, to-the extent of the property so attached by him. We cannot agree with the contention of counsel for plaintiff that the lien so acquared was lost by a failure on the part' of the probate judge to make the necessary docket entries of this transaction. Enough is shown to satisfactorily establish the fact that the plaintiff in that case, Dix, had at that time secured a legally authorized attachment to issue, which in- the hands of the sheriff, Hesser, had ripened into a-valid subsisting lien as against the right of the plaintiff' bank, under its unrecorded .mortgage. In the Dix case only a small portion of. the property covered by plaintiff’s mortgage was levied upon by the sheriff, some 27 volumes of books and a desk and three chairs, leaving a large number of law books in the office at the time the sheriff riiade the Dik levy, not covered thereby,, and these the plaintiff was entitled to the possession of, by virtue of its mortgage thereon. There are other questions presented 'by the brief of *123 plaintiff which seem to have had some consideration in the trial of. the case, but they are each of them questions which do not go to the jurisdiction of the probate court in the attachment relied upon, but tend, rather, to present a question of error in the probate court in the procedure in that tribunal, resulting in a judgment against Baker in that court. With such questions this court has no. concern. Errors of procedure in the probate court resulting in a judgment against Baker, for the enforcement of which an order of sale might issue to sell the attached property, are not questions which can come to this court for review 'in the manner here presented. Such errors can only be corrected in this court by a direct appeal from the decision of the probate court. There yet remains for consideration in this ease one other important question which applies to the conclusion reached in the trial court in its determination, that defendant, Hesser, was entitled to the possession of the property taken on the attachment in the case of Millikan v. Baker. We have already noticed that in the case of Dix v. Baker, there were two defendants, one of whom, Taylor,-was rightfully summoned in Payne county, and this fact authorized process against the other defendant, Baker, in any other county of the Territory. The court in such cases has jurisdiction of the subject-matter and of the parties. But this does not seem to have been the condition in the case of Millikan v. Balter. In this case Baker was the only defendant, and he was at the time of commencing the action residing in Kingfisher county, having moved there from *124 Payne comity about six weeks previous to the bringing of the suit by Millikan. His residence in Kingfisher county was open and notorious. The action against him was not an action in personam. When suit was brought, the attachment ■ being levied and summons returned, “Not found in Payne county/’ the case was by order of the probate court continued pending service by publication upon Baker, which was accordingly made, and was the only service made in that case. There was no appearance made by Baker in the probate court. The correctness of the determination of the trial court, holding the attachment in this case of Millikan v. Baker to be a first .lien upon the property attached, is challenged upon the ground that said attachment when issued was void for want of jurisdiction in the probate court to issue the same. In support of this contention plaintiff in. error cites sec. 10 of the Organic Act of the Territory, which, among other things, provides: “And all civil actions shall 'be instituted in the county in which the defendant or either of them reside, or may be found.” If it may rightfully be contended that the action of Millikan v. Baker was an action in rem, numerous authorities might be cited in support of the jurisdiction of the probate court, among them the supreme court of the United States, Central Loan and Trust Co. v. Campbell, 173 U. S. 97, where that court construes this provision of the Organic Act, in the following language: “It is insisted that under the Organic Act of the Territory, the court could not acquire jurisdiction of the person of the defendant by constructive service by foreign attachment without his consent. *125 “The section of the Organic Act referred to requires that all civil actions shall be brought in the county where a defendant resides or can be found. In a proceeding by attachment of property, which is in the nature of an action in rem, it is elementary that the defendant is found, to the extent of the property levied upon, where the property is attached. It would be an extremely strained construction of the language of this act to hold that congress intended to prohibit a remedy universally pursued, that of proceeding against the property of non-residents in the place of the territory where the property of such non-resident is found.” This determination of the supreme court of the United States is cited by the defendant in error in support of his contention that the action of Millikan v. Baker in the probate court, was a proceeding in rem or quasi in rem. We thpk the .authority not applicable. There is no parallel between the cases, unless it may be said that an action is rightfully a proceeding in rem when brought in ■ a county where a defendant resident of the Territory may not be summoned, with the purpose of appropriating his personal property by attachment to the satisfaction of a debt. This is not the law, and such proceedings are barred by the Organic Act above cited, in that jurisdiction is not and cannot be authorized by statute over the person or property of a defendant resident of the Territory, in a county where such defendant does not reside or may not be summoned. There are no qualifications to the provisions of the Organic Act, and its language is mandatory that “All civil actions shall be instituted where the defendant resides,” etc. An action which has for its purpose the subjection of *126 property to the payment of a debt, and is commenced by attachment for that purpose, is a civil action, and must be brought “in the county where the defendant resides or may be found.-” If not so brought, the court entertaining the proceeding is .without jurisdiction, and its action is void. ' This we find to have been the condition in the case of Millikan v. Baker, in the probate court of Payne county. Such court, therefore, had no jurisdiction to issue ithe order of attachment relied upon by the defendant, sheriff Hesser, in the district court. It follows that the conclusions reachéd by the court below, were erroneous to the extent here indicated. See Foster v. Cimmaron Valley Bank, decided at this term of court. The judgment of the district court sustaining the» attachment of W. L. Dix v. Baker & Taylor. for the satisfaction of his debt, amounting to $42.66, is affirmed, and the sheriff of Payne county is hereby awarded possession of the ■ attached property in that case for the satisfaction of such sum and the costs of the probate court therein. The plaintiff is hereby adjudged to be rightfully in possession of the property attached in the case of Millikan v. Baker. The costs in the district court and in this court will be equally' divided between the plaintiff and-defendant. . Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.