Dronillard v. Whistler

Gregory, C. J. Proceedings in attachment by Whistler against Dronillard, a non-resident of the State. Notice by [553] publication; judgment by default; the defendant appeals. The first alleged error complained of is, that there was no sufficient affidavit on which to found the notice of the pendency of the action. There was an affidavit filed with the complaint, showing the nature of the demand; that the claim was just; the sum the plaintiff’ believed he ought to recover, and.that the defendant was a non-resident of the State. This is all the code requires to authorize notice by publication. 2 G. & II., § 38, p. 63. It is claimed that the notice ought to have shown that the proceedings were in attachment. The notice states the pendency of the action. This, we think, is sufficient. The sheriff’ made the following return to the writ of attachment: “ This writ came to hand November 23, 1867, and, after diligent search, I find no goods of the defendant whereon to levy. I have, therefore, by virtue of this writ, attached the following described real estate of said defendant, in my county, to-wit: The northeast quarter of section Ho. 8, in township Ho. 27 north, of range Ho. 4 east, containing 160 acres, and have caused the same to be appraised, with the assistance of Albert Cole, a reputable householder and freeholder of said' county, under oath, at the sum of $9,600.” (Sig’d) “Wesley Wallieh, Sheriff’ M. 0.” The code provides that “ the sheriff shall proceed, with the assistance of a disinterested and credible householder of the county, to attach the lands and tenements, goods and chattels of the defendant subject to execution, and shall, with the assistance of the householder, make an inventory and appraisement thereof, and return the same with the order.” 2 G. & II., § 164, p. 142. It is objected to the sheriff’s return: 1. That-it does not show that Cole assisted in making the attachment. 2. That no inventory and appraisment of the property attached was made and returned with the order. 3. That it does not show who appraised the property. 4. That the return does not show that Cole was disinterested and credible. 5. That it does not appear that [554] all the property of the defendant in the county was attached. Wo think these objections not well taken. The sheriff’s return gives a description of the property and its appraised value. If the sheriff gives a specific description of the property in his return, it is not necessary that he should accompany it with a separate schedule. Drake on Attachment, sec. 198; Pearce v. Baldridge, 2 English (Ark.) 418. We think that the return does show that the sheriff made the attachment and appraised the property, with the assistance of Cole. Cole is shown to be a reputable householder; he is -not a party to the suit; it does, therefore, prima fade, appear that he was disinterested. If he was reputable he ■was credible. We do not think that the code requires all the property of the defendant in the county to be attached. It is doubtless in the power of the sheriff to attach the lands and tenements, goods and chattels of the defendant in his bailiwick subject to execution; but his failure to do so could only subject him to liability to the attachment plaintiff", in the event of the insufficiency of the attached property to pay the debt. It .is claimed that the judgment below ought to be reversed because the levy was grossly excessive. We think otherwise. It was impossible for the sheriff to know, at the time he attached the property, how many other creditors would file their claims under the original attachment proceeding.. It is the duty of the sheriff', on the final process, to sell no more of the property than may be required to pay the amount due, including costs. The court found the facts alleged in the plaintiff’s com- ' plaint to bo true; that there was then due from the defendant to the plaintiff one hundred and forty-three dollars and sixty-one cents, and that the defendant was a non-resident of the State. It is claimed that the finding is defective in omitting to find whether the defendant’s wife and family remained settled in the county. If they remained so set555 tied, it was a matter of defense. Frantz v. Wendall et al., 28 Ind. 391. N. O. Foss and F. P. Effinger, for appellant. L. Walker and A. Blake, for appellee. As the judgment was by default, and the defendant had no opportunity to make these objections in the court below, wo have considered them here. The judgment is affirmed, with 10 percent damages, and costs.