Wescott v. Archer

Maxwell, J. This is an action of ejectment. Judgment was rendered in favor of the defendant in the court below. The plaintiff brings the cause into this court by petition in error. It appears from the record that one Emma L. Wright is the common source of title of the plaintiff and defendant, and that on the 15th day of March, 1879, she-conveyed the premises in controversy to the plaintiff; that on the 16th day of August of that year, Sampson, Wilkinson & Go. commenced an action against the plaintiff, in the district court of Lancaster county, to recover the sum of $140.40, and caused the lands in dispute to be-attached; that afterwards judgment was rendered in said action, and the lands in controversy sold to one Hume; that said sale was confirmed, and a deed made by the sheriff to said Hume, who afterwards, by his attorney in fact, conveyed' to the defendant. It is conceded that the plaintiff was a non-resident of the state-, and that service of summons could not be made upon him; that a sufficient affidavit for an attach: ment was duly filed; and that all the proceedings in that action are regular except that no summons was issued for the plaintiff in error (defendant below); and it is claimed that the notice of publication, and the proof of the same, are insufficient. When a defendant is a nonresident of the state, and service of summons cannot be had upoh him therein, no summons need be issued, as-the law.does not require a vain thing. It is- very strenuously insisted by the defendant in .error, that even if we find the notice so defective as to be. [347] invalid, that no notice was necessary to authorize the court to render a valid judgment in an action by attachment, where the object is to subject the property attached to the payment of the judgment. In the case of Paine v. Moreland, 15 Ohio, 435, the action was ejectment. The defendant claimed title under a sheriff’s deed, made in pursuance of a sale' under the attachment, no notice having been given. The court held that the proceedings were not void, but voidable. In the opinion it is assumed that because the-statute gives the court the right to sell perishable property, it therefore has the right to dispose of property without, notice, whether it is perishable or not. The court overlooks the fact that the only reason a court is authorized to sell perishable property is because the property being taken out of the custody of the debtor and placed in the custody of the law, therefore the court, for the purpose of caring for the property, is a bailee, and it is its duty to. see that the property is not lost or destroyed. The right-to sell the property in such case grows out of the care-that the law exercises for the protection of the property or its proceeds for the benefit of the party entitled to the same, and not from any authority to condemn the title, and divest the title from the owner thereof without giving-him opportunity to be heard. The language of the statute is: “The court shall make proper orders for the preservation of the property during the pendency of the suit; It may direct a sale when, because of its perishable nature, or the costs of keeping it, a sale will be for the-benefit of the parties.” Comp. St., 558. The object is to prevent loss as far as possible, and not to determine who-is entitled to the proceeds of the sale. But the authority to-sell perishable property would confer no right to sell property as such that clearly was not perishable, such as real estate, and a judgment of that kind would be void. [348] But a logical deduction from the opinion of the court in the case cited is, that if the court decided that real estate— wildland — was perishable property, and therefore ordered a sale of the same before judgment, the sale would be a mere irregularity, and, if not reviewed on error, would be valid. It is said the court acquires jurisdiction by its own process; that .the writ draws the person or thing within the power of the court; and that this confers jurisdiction. That is true in all cases where the process of the court has been legally served upon the defendant, but it is not correct if it is sought to condemn the property of a party without a hearing. To hold that a court, by the simple’ levying of its process upon the property of a debtor, may then proceed without notice to render judgment against such debtor, and sell his property to satisfy the same, is to hold that the constitutional guaranty, that no person shall be deprived of his property without •due process of law,is of no effect. Can it be said that a party whose property has thus been condemned has had his day in court ? The fallacy of the reasoning in such case is in saying that because the property was under the control of the court, it therefore had authority to render judgment against the defendant and sell his property to satisfy the same. Suppose the defendant was a resident of the state, and an attachment was secretly issued out of the district court and levied upon his property, but.no service had uponhim, could the court proceed to find that he was a non-resident of the state, and thereupon proceed to render judgment against him and order his property, taken under the attachment, to-be sold ? If the doctrine laidMown in the case of Paine v. Mor eland and cases following it, is correct, it could do so, because the court had acquired jurisdiction by the attachment of the debtor’s property. How can it be said that a court has authority to hear a cause, unless the parties to be affected are before the court, either by appear [349] anee, or by actual or constructive service ? If there is no action against a party, there can be no condemnation of his property; and where there is no appearance, no-action can proceed to- judgment without actual or constructive service upon the defendant. The attachment is merely for the purpose of retaining the property in the-custody of the law until it is determined whether the plaintiff is entitled to recover. If a plaintiff can commence an action by attachment-against a non-resident, cause his property to be levied upon and sold without giving him an opportunity to appear and defend the action, a wide door will be opened for the perpetration of fraud, and the court become the-instrument for its - accomplishment. A plaintiff with a valid cause of action has nothing to fear from the publication of notice, while a court with proof of proper service on file has the assurance that the law has been complied with, and that it is not being used as a medium to-unjustly deprive a party of his property. We hold, therefore, that where an attachment is levied upon property, and there is no personal service, there must be a service by publication to give the court jurisdiction, and no judgment is valid without such notice. King v. Harrington, 14 Mich., 532. Miller v. Babcock, 29 Mich., 526. Anderson v. Coburn, 27 Wis., 558. Such notice should, in some way, describe the property attached. If real estate is taken, it should be described in such manner as to identify it. The object is publicity, and this can best be obtained by an accurate description of the property levied upon. • The notice in this case is wholly defective in this regard, there being no attempt-to describe the property attached. The notice is also defective in not being intelligible, many of the words being but little better than blanks. Objection is made to the proof of publication. The affidavit was made by the publisher of the Lincoln Globe,. [350] and this is sufficient, under our statute, as any person knowing the facts may make the proof. And where a -competent person makes an unequivocal oath of the fact, he will be presumed to possess the knowledge necessary to make it. Eor the reason that no valid notice of the pendency of the action under the attachment, by describing the property attached, was given, the judgment is reversed and -cause remanded for further proceedings. Reversed and Remanded.