McKenzie v. Ransom

[329] The opinion of the court was delivered by Redfield, J. The fact, that the person, who was deputed to serve the writ in this case, was also recognized for costs to the defendant, would, I apprehend, be esteemed sufficient reason, why he should not have been appointed lo serve the writ, and probably might have been made the basis of a plea in abatement, by the principal defendant in the suit, — possibly by the trustee; but it was very clearly mere matter of abatement, and, being matter dehors the record, could only be objected to by plea. This right is also claimed by the claimant. But we do not think it was the purpose of the legislature, to give to the claimant, who is called into the suit in this collateral manner, the opportunity of bringing forward mere dilatory pleas. We think such a right in no sense essential to the determination of the real interests involved in such a controversy; and it would certainly be attended, in many cases, with manifest vexations and needless delays. And it seems to us, that the language of the statute, in express terms, excludes the right to bring forward any such plea by the claimant. The words are, “ may be admitted a party to the suit, so far as respects his title to the goods,” &c. This seems to us sufficiently explicit. And we think, the questions raised by the claimant must be confined within these limits. But another view of the case has been urged by the counsel, for the claimant, with great fairness and ability, and has presented some analogies to cases already determined by this court, not entirely free from difñcalty. It is said, the copy left in this case with the trustees not containing the officer’s return, as is required by statute in the service of such process, the service was so defective, as to constitute no attachment. And that, as it is not competent for the trustee to waive the rights of other claimants interested in the effects, the title of the claimants is, in truth and right, prior to that of the attaching creditors. This depends upon the question, whether the service constituted any attachment of the effects in the hands of the trustee. This omission, in the service of the writ, of the copy of the officer’s return, is manifestly, so far as the trustee is concerned, mere matter in abatement, and, if not pleaded at the first appearance, is waived. So, too, if the trustee suffer default, it is waived, and the [330] judgment fixes the trustee, and the title of the goods is, certainly as to all having notice of the suit, fixed also. But it is said, that still the attachment is so defective, as not to prevent a subsequently acquired title by contract, and, by parity of reasoning, I suppose, by attachment. This is argued from analogy to those cases of attachment of real estate, and hay and grain and other articles of personal property, where the attachment is made solely by copy. And if the copy is defective, as in the present case, the attachment has been held ineffectual. But vve think, there is an important distinction in the two classes of cases. In the one the return of the officer is all that constitutes the attachment. Without that, it would be impossible to determine, what property was intended to be attached. It is the return of the officer, which effects the sequestration of the property. But in the other case the writ itself effects, in one sense, the sequestration, and the copy is left for notice to the trustee. The writ designates what property, viz., all that is in the hands of certain persons, naming them, as trustees, is to be attached ; and when the trustee is notified of this sequestration by the writ, the attachment becomes perfect. Of this he is fully notified, by having a copy of the writ; this makes him a party to the proceeding; this informs him of the time and place of hearing; and the copy of the officer’s return is a matter wholly personal to himself, — a matter not important for purposes of notice, even, and which is only required for the purpose of authentication, which is sufficiently done by the officer delivering the copy in person, (as was done in the present case,) and which is probably required by the statute, chiefly on account of those cases, where the copy is left at the abode of a defendant, in his absence. But being a statute requisite, the trustee may insist upon it, at the proper time and in the proper form. But we think he is so far made a party to the proceeding, by having a copy of the process delivered to him, by any officer, general, or special, that he is not at liberty to treat it as no attachment. And if he cannot, certainly others should not. Whenever such proceedings are taken, as to make him a party to them, the attachment, for the time being, is effected. If it be informal, or defective, in particulars affecting the trustee only, he alone can insist upon such informality. But in the case of attachment of real estate, and the like, if the [331] copy left at the clerk’s office be sufficient to designate the estate attached, it has never, that I can find, been regarded essential to the legality of the attachment, that even that copy should contain every statute requisite. No doubt, if the entire return were omitted, the attachment would be incomplete, and inoperative, as not designating the estate attached; and this it is, which constitutes the attachment. Such a proceeding would be, in effect, no attachment. Cox v. Johns, 12 Vt. 65. But where the return is only defective in form, the attachment has been held valid. Huntington v. Cobleigh, 5 Vt. 49, and Herring v. Harmon, cited by Williams, J., in the opinion, in the last case. So, too, it has always been held, that, in the attachment of personal property in possession, if the officer took the custody of the property, by virtue of a valid process, the attachment was valid, for the time, notwithstanding the process, or the service, might be so informal, as to be liable to be abated, on a proper plea by the debtor, or defendant. Newton v. Adams, 4 Vt. 437. So, too, the attachment of personal property in possession dates from the time the officer takes possession, and he may deliver the copy at any time, sufficient for notice to the defendant, or the defendant may wholly waive the copy. Pearson v. French, 9 Vt. 349. See, also, Judd et al. v. Langdon, where the defect of service was precisely the same, as in the present case. We entertain no doubt, that the trustee, in this species of attachment, may waive the officer’s return, or the copy, or, after being notified of the process, may do what is called “ accepting service.” In short, whatever is sufficient to create and to continue the trustee a party to the proceeding, is sufficient for the purposes of the attachment. The argument, by which it has been attempted to liken this to the case of Nelson v. Denison, 17 Vt. 77, and to that of Kelly v. Paris, 10 Vt. 26, perhaps in both of which cases the attachments were held void for defects, which, if not pleaded in abatement, in cases of mesne process, might probably be considered as waived, does not, we think, apply to a case like the present. In those cases it was considered by the court, that there was an absolute want of authority, in the officer making the attachment. So that he was in fact a trespasser, a mere intermeddler, as much so, as if he had [332] acted wholly without process. I have always thought myself, that the case of Nelson v. Denison was decided upon too narrow grounds, and that the defect in the process, being only as to the time of service, might with more propriety have been treated as something personal to the defendant, and which, if not pleaded in abatement, was waived, and which could only be taken advantage of by the defendant. But the court regarded the writ, as conferring no authority upon the officer more than sixty days before the return day, as the statute requirés, that justice writs shall not be served more than sixty days before the return day. And by parity of reasoning, a justice writ, if served less than six days before the return day, would confer no authority, the officer would be a trespasser, and the party, perhaps, might treat the proceeding as a nullity, — although this would not necessarily follow. I think there is a case in Wheaton, or Dallas, where it is held, that in service of a writ of summons, the notice being too short is no ground of plea in abatement, even, but is waived by appearance; but that case has not been followed. Such defects have been regarded good causes of abatement, when pleaded at the first appearance. But the case of Nelson v. Denison is, I think, the first case, which has gone the length of wholly avoiding the attachment and treating the officer as a mere trespasser, in consequence of any defect of this character. An inferior tribunal could hardly have made such a decision, with a good grace. But the ground upon which the case is put by the court, a want of authority in the officer, shows that it has no just analogy to the present. I do not object to the case of Nelson v. Denison, as not being good law to the extent it goes; but the case stands alone, and unsupported by authority, or analogy, and is certainly in no sense like the present, and the principle of that case should not be extended. Judgment affirmed.