Bell v. Olmsted

By the Court, PAINE, J. In this case a summons and writ of attachment were placed in the sheriff’s hands, at the same time, for service. He served the attachment by notifying a person alleged to have property of the defendant in his hands, to anpear and answer. This service was made on the 9th of September. But the summons was not served on the defendant until the 21st of September.' The defendant afterwards appeared and moved to set aside the attachment because it had' been served before the service of the summons. And the court held that though the attachment might be issued before the service of the summons, yet . it could not be regularly served before the summons. The motion was denied, however, upon the ground that the defendant by appearing had waived the irregularity. Whether that conclusion is correct or not, we do not find it necessary to inquire. A general appearance waives all defects in the process designed to get the party into court. After he has come in, it is immaterial whether the process to get him in was good or bad. But whether such waiver could be extended to defects in a writ of attachment or in the service of it, under the present practice, where such writ is not process to bring the party in, orto get jurisdiction of his person, may be perhaps doubtful. But we think the motion was properly denied for the reason that the writ may be not only issued but served before the summons is served, the latter having been made out and placed in proper hands with a bona fide intent to serve. The courts of New York have made a distinction between the attachment authorized by sec. 227 of their amended Code, and that previously authorized by their Revised Statutes, which was also re [72] tained after tbe Code. The latter they held to be a special proceeding in rem, and the former a mere remedy which could only be obtained in actions commenced by the service of a summons, and in which the court had or could acquire personal jurisdiction over the defendant. Fisher v. Curtis, 2 Sandf., 660; Furman and others v. Walter, 13 How. Pr. R., 348; Houghton v. Ault, 16 id., 77. We have so far assumed that the writ of attachment now authorized by our law is in the nature of that authorized by the New York Code, as to hold that it was not the process by which suits are commenced, but a mere remedy designed to aid in a suit. Chase v. Hill, 13 Wis., 222; Jarvis v. Barrett, 14 id., 591. But it cannot be inferred from those decisions, that the character of such an attachment as' a proceeding in rem has been so far abolished that it can only be resorted to in an action in which the court has acquired or at least can acquire personal jurisdiction over the defendant, as was held in the case above referred to in the 2d Sanford. For the case of Jarvis v. Barrett was, like that, a case against a non-resident, and it was conceded that even by a proper publication of the summons, the court could acquire no personal jurisdiction of the defendant. Yet it was held that the suit could proceed, and that “it was in the nature of a proceeding in rem, as when an attachment was required.” While, therefore, we have applied the doctrine of the New York courts concerning their Code attachment to our writ to some extent, yet we have not held that they are altogether alike. And this could not well be held. There is a marked difference between the language of sec. 227 of the New York Code and that of our statute. The former provided that “in an action for the recovery of money ” against certain parties the plaintiff might, at the time of issuing the summons or at any time afterwards, have the property of the defendant attached as a security, &c. In the case in the 2d Sanford, stress was laid upon the words “in an action,” and I should not be pre [73] pared to deny that it was correctly held in that case, that their section referred only to actions in which the court could acquire personal jurisdiction. But our statute provides that “ any creditor shall be entitled to proceed by attachment in the circuit court of the proper county against the property of his debt- or” &c. — the usual and apt wordsof attachment laws designed to authorize a proceeding in rem. And it will be found on an inspection of the provisions of chapter 130, R. S. 1858, that they are to a great extent, including the provision just quoted, copied literally from chapter 112, R. S. 1849, which was the old attachment law. It is true that the provisions of that law as to the mode of notifying the defendant have been omitted, and in their stead the provisions of the Code in respect to the service of a summons by publication or otherwise are applicable. Our statute may fairly be regarded as a blending of the old attachment proceeding in rem and the provisions of the Code as to service of process and the commencement of actions. And although the latter may have substituted the summons as the process for commencing the suit instead of the writ, yet the whole proceeding is or may be so far purely in the nature of a proceeding in rem, as it was in Jarvis v. Barrett, that it remains equally clear as it was under the old law, that the intention was that the writ might be served as soon as it could be legally obtained, and that it was not to wait for a service of the summons on the defendant. The very grounds for allowing an attachment show that in many instances an actual service on the defendant would be highly improbable, in others impossible. Among them are “ that the defendant has absconded from the state, or is concealed therein to the injury of his creditors,” and that “he is a non-resident,” or a “ foreign corporation.” In all such cases it is evident at the outset that service must be by publication, and equally evident that if the attachment must wait until the publication could“be completed, the remedy would be fruitless. The only ground for holding otherwise is derived from a lit [74] eral construction of several provisions of the statute. Section 3, chap. 101, Laws of 1859, provides that the writ of attachment may be issued at “ the time of the commencement of the action or at any time thereafter before final judgment.” Sec. 1, chap. 124, provides that civil actions shall be commenced by the service of a summons. The counsel for the appellant then applies our decision that the summons is the process by which these actions are commenced, and infers that the attachment cannot be legally issued, or át least not served, before service of the summons. If the statutes were to receive a merely literal construction, the conclusion might be correct. But for some purposes suits are considered commenced before the summons is served, as soon as it is placed in proper hands with a Iona fide intent to have it served. And the manifest design of this statute requires that interpretation. Miles v. Corbett, 8 How. Pr. R., 500; Hagan v. Burch, 8 (Clarke) Iowa, 309; More v. Thayer, 10 Barb., 258. There is nothing in the case of Jarvis v. Barrett conflicting with this conclusion. That case oifly decided that an attachment of property was not essential to the validity of the judgment. But while expressly holding that the creditor might attach, if he did not choose to run the risk of a sale or removal of the property, whether he could do so before the service of the summons or not, was not passed on. The order is affirmed, with costs.