Keys v. Grannis

Opinion by Lewis, J., Beatty, C. J., concurring. The complaint charges the defendant in this action with having wrongfully and unlawfully seized and converted certain chattel property belonging to the plaintiff, valued at seven hundred and thirty-two dollars, and that thereby he the plaintiff was damaged in the sum of one thousand dollars, for which sum judgment is asked. — 549 — The defendant first denies unqualifiedly all the material allegations of the complaint, and then by way of justification avers that at the time of the alleged taking, the property claimed by plaintiff belonged to one Jerome W. Coffin: “ That under and by virtue of a certain writ of attachment, issued on the seventh day of November, a.d. 1866, by the Justice of Peace-of District No. 3, Washoe County, Nevada, directed to him the said defendant, then constable of District No. 3 aforesaid, commanding him the said defendant to attach the property of the said Coffin, and safely to keep the same-; he the said defendant, constable as aforesaid, did upon the seventh day of November, A.D. 1866, in the- County of Washoe aforesaid, levy upon and attach the same chattel property described by the said plaintiff, and so continued to hold the same up to the time of sale thereof as hereinafter set forth.” It is further alleged that the property was afterwards sold under an execution issued from the said Court, but the defendant did not introduce the execution in evidence, nor rely upon it as a justification for the taking. This very singular pleading concludes with an allegation that the property in question was fraudulently transferred by Coffin, and taken by the plaintiff for the purpose of defrauding the creditors of the former. Upon the trial the plaintiff proved in opening his case that he was in possession of the property at the time it was seized by the defendant; that he had purchased it from Jerome W. Coffin,-paying him a valuable consideration therefor; ■ that the defendant had taken it from his possession, and tipon demand being made refused to return it; and also that the property was worth the sum of seven hundred and eighty dollars, thus making out a prima facie case against the defendant. The defendant therefore sought to justify the taking under a writ of attachment issued by a Justice of the Peace, the plaintiff objecting to the introduction in evidence of the papers and the record of proceedings in the case in which the writ was issued, urging among other objections that the answer was not sufficient to authorize their introduction; because it did not show that the Justice who issued the writ had authority to do so. The Court below ruled out all the papers and the writ under which the defendant sought to justify. This ruling it is claimed is — 550 — erroneous, and is the principal ground relied on in this Court for a reversal of the judgment. The first 'question presented for discussion in the case thus brought before this Court is: whether the papers offered in evidence by the defendant and rejected by the Court were necessary to establish his justification. If so, the inquiry as to whether the answer is sufficient to authorize their admission in evidence will then be a pertinent question for consideration. That it was necessary at least to produce the writ under which the property was seized, and to show that the Justice had authority to issue it, we are fully convinced; whether it was necessary to go beyond that and show that the writ was regularly issued, depended entirely upon the character of the plaintiff’s interest in or right to the property sought to be recovered by him. When property is taken from the possession of a stranger to the writ, who claims title by means of purchase from the defendant in such process, and sale is valid and good between the parties to it, but void only as to creditors, the officer can justify the taking in such case only by showing that he represented a creditor, and that the writ under which he seized the property was regularly issued. As a general rule, process regular on its face and issued by a tribunal or officer having authority to issue it, is sufficient to protect .the officer, although it may have been irregularly issued. But when the officer attempts to overthrow a sale by the debtor on the ground that it was fraudulent as to creditors, he must go back of his process, and show the authority for issuing it. If he act .under an execution, he must show a judgment; and if he seizes under an attachment he must show the attachment regularly issued. (Noble et al. v. Eastman, 5 Hill. 195; Thornburg v. Hand, 7 Cal. 554.) If however the sale by the debtor were simply colorable, or only a transfer of the possession merely for concealment, with no intention of transferring the title, the writ alone, if regular on its face and emanating from a tribunal having jurisdiction of the subject matter, will be a full protection to the officer in an action by one so holding possession of the debtor’s property. (3 Starke on Evidence, 1355; also Thornburg v. Hand, supra.) To justify himself in any case whatever, therefore, the officer — 551 — must establish two facts: first, that his' writ is regular on its face; and second, that the Court had authority to issue it. If the process issues from a Court of general jurisdiction, the authority to issue it would be presumed; but if from a tribunal or officer of special and limited powers, the authority must be shown by the officer. And now as to the admissibility of. the evidence offered by the defendant in justification of the taking and detention of the prop- ’ erty in question. As there is no presumption in favor of the authority or the regularity of the proceedings of Courts or officers of special and limited jurisdiction, it was formerly necessary, in pleading their judgments or orders, to show that they had jurisdiction, and .that their proceedings were regular. This common law rule of pleading is however very greatly modified in this State by Section 59 of the Practice Act, which declares that “ in pleading a judgment or other determination of a Court or officer of special jurisdiction, it shall.not be necessary to state the facts conferring the jurisdiction; but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted,- the party pleading shall be bound to establish on the trial the facts conferring jurisdiction.” As this section dispenses with very much that was required by the Common Law rule, and specifies what shall be sufficient as a substitute for it, that substitute ought, it would seem, to be strictly followed. The allegation that the judgment or determination was duly given or made is a substitute for the lengthy and minute statement of the jurisdictional facts which were formerly required. To show the jurisdiction is as necessary under our practice as it ever was, the only change being in the manner of stating it. That the judgment was duly given or made is a concise mode of stating that the Court or officer had the proper jurisdiction, and that the judgment was regular, otherwise it would not be duly made or given. Section 59 of the Practice Act is a liberal copy of Section 161 of the New York code of procedure, under which it has been held that in pleading the judgments of such Courts or officers it is abso — 552 — lutely necessary to allege that they were duly rendered or made. “ The word entered or perfected,” says Mr. Justice Smith in delivering the opinion of the Court in Hunt v. Dutcher, 13 How. P. R. 538, “ may be equivalent to the word ‘ made or given’; but the word duly is most essential. It can hardly be dispensed with and satisfy the terms of the statute. I can imagine no single word that will supply its place.” In the answer in this case there is nothing whatever from which it can be ascertained whether the Justice had jurisdiction of the subject matter or not.' The action in which the writ was issued may have been brought to recover a sum of money far beyond his jurisdiction; and for aught we know, the writ may have shown such to be the case. If so, it -would be no protection to the officer. As we have before stated, the process, to be a protection to him in any case, must be regular on its face, and must emanate from a Court or officer having jurisdiction of the subject matter. If it appeared by the writ under which the defendant sought to justify that it was issued in an action brought to recover over three hundred dollars, which is the limit of'a Justice’s jurisdiction, the defendant would not be compelled to execute it, and it would not justify any act of his under it. (See McMurty v. Henry, 4 Bibb. 410.) The mere allegation, therefore, that he seized the property under a writ of attachment by a Justice of the Peace, without showing in some way that the Justice had authority to issue the writ, is not sufficient to constitute a justification to the officer. Had ■ the writ issued from a Court of general jurisdiction, the authority would be presumed; but no such presumption can be invoked in aid of the defendant’s answer in this case. The presumption, if any can be entertained, would be against such authority. The defense of justification not having been pleaded, could not properly be proven, for the evidence must correspond -with the allegations, and be confined to the material points in issue. ■ The allegation that the property in question was seized under a writ of attachment was immaterial, and hence no issue could properly be joined upon it. The Court below did not therefore err in rejecting the writ and — 553 — papers in the case of Surtevant v. Coffin. It would have been much the better practice, however, to have suggested an amendment of the answer, and allow it at once, unless the rights of the other party would have been prejudiced thereby. Judgment affirmed.