Smith & Melton v. Walker

The opinion of the Court was delivered by Willard, A. J. The plaintiffs are not properly named in the title of the appeal. Their individual names should appear, and not the copartnership name under which they transact business. A partnership, as such, cannot sue or be sued. The individuals constituting the copartnership may sue jointly, but their names must individually appear on the record. The objection was not made by the parties, and is only mentioned to check a practice inconsistent with technical accuracy of procedure. The appeal brings up the question of the regularity of an attachment and a judgment based upon it. The attachment was issued December 2, 1871. Judgment 'was entered on the 22d of February, 1872. The defendant, J. P. Walker, was adjudicated a bankrupt by an order of the United States District Court, made May 2, 1872, and his estate assigned to Thomson and Jeffreys, September 24, 1872. The motion below was made by the assignees in bankruptcy. The defendant appears to have been a non-resident of this State, and has not appeared in the action or joined in the present motion. No question is presented to this Court involving the effect of the defendant’s discharge in bankruptcy upon the judgment; nor is [174] there any attempt made in the present motion to give effect to the discharge as against the judgment. The only question raised by the appeal relates to the regularity of the proceedings upon the attachment in the Circuit Court. The conclusions of the Circuit Judge in refusing to set aside the judgment and attachment appear to be correct. The right of the assignees to contest the regularity of the attachment and judgment was contested on the ground that no debts had been proved in bankruptcy, and that the bankrupt had been discharged. It will not be necessary to consider how far the Circuit Court can look into the state of proceedings in the Bankrupt Court to determine whether the authority of the assignees over the assets had ceased, for it is clear that no irregularity has occurred of which advantage can be taken, assuming the full right of the assignees to represent the defendant in the' attachment and judgment. The attachment and judgment were both in force prior to the adjudication in bankruptcy. It is claimed that the attachment is irregular and void, because it bears date December 2, 1871, whereas it appears on the face of the summons that it was issued December 4, 1871, two days after the attachment was issued. This objection is taken under .Section 250 of the Code of Procedure. That Section authorizes the issuing of a warrant, in certain cases, “at the time of issuing the summons, or at any time afterwards.” It also adds as follows: “and for the purposes of this Section, an action shall be deemed commenced when the summons is issued.” It also contains the further provision that “personal service of such summons shall be made, or publication thereof shall be commenced, within thirty days.” The attachment issues either in an action on contract for the recovery of money only, or in action for the wrongful conversion of personal property. The cases in which it issues are: First, where the defendant is a foreign corporation; second, where the defendant is a non-resident of this State; third, where he has absconded or concealed himself; fourth, where a corporation or person has assigned, disposed of or secreted his property, or is about to do so, with intent to defraud his creditors. Had the validity of the present attachment rested wholly on the sufficiency of the statement contained in the affidavit on which it was founded, to the effect that the defendant “has departed therefrom to avoid the service of a summons, and has disposed of his property with intent to defraud his creditors,” a [175] serious question of irregularity would have been presented; for charges of this nature should be supported by a statement of the facts on which they are founded. But the additional ground stated for the issuing of the attachment, namely, that the defendant is a non-resident of this State, is sufficiently stated in the affidavit by merely setting forth that fact, without other facts and circumstances. The facts disclosed on the motion to set aside the attachment and judgment were, that the summons was actually made out at the time the application was made fo.r the warrant of attachment, but was afterwards altered, as it regards the date, to a time two days after such application. The date placed upon a summons is not a necessary part of the summons, and is not enumerated as such among the requisites-of a summons by Section 151. The effect of the summons on the defendant’s rights depends wholly on the day of its service, and not in any respect upon the date usually placed on the summons itself. It would not be an irregularity if the date was omitted, nor can an error committed in dating affect the regularity of the summons. This results from the fact that the defendant cannot be prejudiced by such error, his time to plead being governed by the day of service, and the time of the commencement of the action depending on when it was lodged or delivered for service. It is apparent that there was a summons in existence at the time the application for the attachment was made. But the parties contend that such summons was not issued in the sense of Section 250 at the time of the application for the attachment. In order to construe the meaning of the term “issue,” as applied to the present case, we must inquire whether there was any act to be performed by the plaintiffs’ attorney after he had made out the summons and previous to his making his application for an attachment. He was not bound to place it in the hands of the Sheriff for service. The service of a summons may be made by any person not a party to the action. — § 156. When the defendant is known to be a nonresident, and actually absent from the State, it would be useless to go through the forms of placing the summons in the hands of any person for service, and the Code does not require it. The proper mode of service in that case is by publication — an act performed under the direction of the attorney for the plaintiff in accordance with the order of publication. There is no good reason why the [176] attorney may not retain the summons in his own hand in order that it may be attached to and filed with the proof of service by publication. In the case, then, of a non-resident, the summons must be regarded as issued, within'the intent of Section 250, as soon as it is made out and an application founded on it for an attachment. The objection that the affidavit did not state the time from which interest should be computed, is not substantial. If the plaintiff does not sufficiently state one of the several items that go to make up the amount of his demand, he is liable to have the effect of his attachment limited to that portion of his claim which is capable of computation. It is, therefore, the interest of the plaintiff, rather than of the defendant, that the amount of the plaintiff’s claim should be distinctly stated. It does not appear that the amount attached was excessive, and there is no ground to interfere with the proceedings. The objection that the recitals of the warrant of attachment are not conformable to those of the affidavit on which it was granted, cannot prevail at the present time. The attachment states the two causes of action as separate sums demanded, as both arising on notes, while the affidavit states that one of these causes of action was on account of the sale of goods, &c. This variation was, at most, an irregularity, of which advantage could only be taken by a motion made in due time to the Court issuing the warrant, on the ground of irregularity. The warrant was issued in December, 1871, and the judgment was entered in February, 1872. The notice of motion to set aside the attachment and judgment was given in January, 1874. In the absence of proof to the contrary,It must be assumed that the defendant received actual notice of pendency of the proceedings from the publication of the summons under the order of publication, that being the mode of giving notice prescribed by law. The notice must be held sufficient to put him on inquiry as to what proceedings had taken place, and, therefore, to charge him presumptively with notice of the attachment. The date of publication is not stated, but it may properly be assumed to have followed immediately after the order of publication, which bears date December 4, 1871. Under these circumstances, it would appear that due diligence had not been exercised in order to take advantage of the irregularity [177] of the attachment. A party desiring to have an irregularity corrected must proceed at the first opportunity, or offer a reasonable excuse for not having done so-. This does not appear to have been done. The appeal should be dismissed. Moses, C. J., and Wright, A. J., concurred.