Hodson v. Tibbetts

Wright, Ch. J. The Code of 1851 (§ 1826), in force when the law judgment was rendered, provides that, “ When service has been made by publication only, and no appearance had, default shall not be entered until proof has been made that a copy of the petition and notice was directed 'to the defendant through the post-office, at his usual place of residence (stating the place) in sufficient time for his appearance, or that such residence is unknown to the plaintiff, or his attorney, or business agent, and could not .with reasonable diligence be ascertained.” In the case of Broghill v. Lash, 3 G. Greene, 357; and McGahen v. Carr, 6 Iowa, 331, a construction was given to this section, which if followed must be decisive of one and the principal point in respondent’s appeal. That this case falls within the rule there recognized does not seem, indeed, to be very strongly controverted. It is suggested, however, that the subsequent case of Boker v. Chapline, 12 Iowa, 204, is in conflict with the former rulings, or at least that under that [101] decision this judgment is not vulnerable to tbe attack now-made. The circumstances of that case were so very different, however, from what appeared in the prior ones that we cannot believe there is any actual, if even seeming, conflict. The ease before us is much, very much, more like those first referred to, and must be governed by them. Thus holding, we need not repeat the arguments justifying the construction given in those cases to the statute. Following these cases, therefore, a majority of the Court conclude, that upon this point the Court below did not err. Before leaving it, however, it is due to the members of the Court thus holding,-to say, that one of them regards the construction fully in- accordance with the spirit and policy of the statute, while another, without going further, is content to place this case upon the authority of the former rulings; and the third, without wishing to be positively concluded upon the question, conceives it to be his duty to follow the cases referred to, inasmuch as their correctness is not seriously controverted by counsel. Whether the attachment of the property conferred jurisdiction without reference to the subsequent proceedings, or whether the rule recognized in Paine's Lessees v. Mooreland, 15 Ohio, 435, and other similar cases relied upon by the other members of the Court, is applicable under a bill of this character, and a statute like ours,- is a question not made in the argument, and we have therefore not deemed its discussion or examination necessary. It seems, however, that in September, 1861, after this bill was filed, plaintiff, in the law action, obtained an order of the following purport: He had filed on the 24th of August, 1859, an affidavit “of the non-residence of the said William and Thomas Tibbetts” and it was ordered and adjudged in September, 1861, that the said affidavit “be and the same is hereby ordered to be filed as of the 7th of May, 1858,” (the date of the judgment), and should have like effect. [102] And it is now claimed that though the judgment was originally invalid the filing of this affidavit and this order cured such invalidity and perfected the title under the sheriff’s sale. In this view, however, we cannot concur. It is not as if the record was incorrect, and plaintiff had, upon a proper case made, obtained an order impressing it with its true character. - Thus, if copies of the notice and petition were, in fact, sent to the defendants, or if the affidavit in excuse, contemplated by the statute, was actually filed, and plaintiff had obtained leave to substitute them if lost, or to file the proof nunc pro tunc, the question would have been very different from that now presented. But the proceedings of September, 1861, show that no such affidavit was filed until in August, in 1859; and establish affirmatively that the required proof was not made at or before the rendition of the judgment. The power of a court to correct or amend its judgments differs very widely from what was attempted in this case. To illustrate, an officer might have leave to amend his return or process in accordance with the truth, so as to prevent injustice and wrong, but the Court would have no power to sustain and uphold a judgment previously rendered, by allowing him, after its rendition, to make a service, because he ought to have made and intended to make one before. To sustain the position of respondents, would make jurisdiction depend, not upon what was done at or before the time of its exercise, but upon the action of parties and officers long after the judgment was rendered, the proceedings closed, and the rights of third persons had become vested. This should never be allowed. We need only remark, that the case of Walker v. Jefferson, 5 Ark., 23, relied upon by respondents, decides no question bearing remotely even, upon the one now under consideration. Suggesting that no argument of conclusiveness can be drawn from the order of September, 1861, inasmuch as the persons holding the title to the land under [103] Tibbetts, were not parties to tbe proceeding, we pass to the consideration of complainant’s appeal. The decree, after setting aside the judgment,'proceeds at great length and with much particularity, to adjust and settle the rights of the respective parties. We do not understand complainant to object to the details of this decree, but to stand upon the proposition, that if there was no valid judgment, there was no attachment lien, and that the Court could not hold and declare that the property seized by the attachment should be held liable and bound to pay the debt of Merritt, or those who seek to be subrogated to his rights. The argument is this : The attachment of property passes no estate to the plaintiff, nor is the interest of defendant thereby divested. It constitutes a lien, it is true, but this can only be made available to the plaintiff} upon condition that he recover a judgment, which alone can determine that the claim on which the attachment rests, is just. If he fails to obtain "his judgment, the inchoate lien is gone. Drake Attach., 233; Hale v. Cummings, 3 Ala., 398. The rule, as thus stated, however, has particular reference to cases where there is final judgment for defendant, or where plaintiff fails to prosecute his action, and the same is, as a consequence, dismissed. For the attachment proceedings are merely auxiliary to the main action, and if plaintiff fails in that, the auxiliary process failed also. But in this instance, there was no judgment for defendant; plaintiff did not fail in his action. It is, as though a judgment for plaintiff had been reversed in an appellate court, and the cause remanded. In such a case, the attachment lien is not lost. It may be assimulated also to a case, where a judgment at law is set aside on the ground of fraud, accident or mistake. Such an order remits the parties to their respective rights and liens as they existed before the judgment. The invalidity of the judgment, for whatever cause, does not [104] defeat the lien. The original demand still exists. All the proceedings leading to the seizure of the property remain unaffected, and the parties are heard again upon the plaintiff’s claim. The Case is taken up just as if no judgment had been rendered; all rights depending on the preceding steps being unimpaired. These rules are sustained, as it seems to us, by the soundest principles of equity. If respondents have any valid defense to this claim, they have an opportunity, under this decree, to show it. Plaintiff, in the original action, if he has no just claim against respondents, fails entirely, and the lien of the attachment is at pnce extinguished. Not only so, but complainant bought, with constructive knowledge of the attachment lien. He knew then, that the property had been seized and was held under the writ. Suppose the execution had been set aside, and the judgment sustained, what weight then would have been in the proposition that he should* not pay the money owing on the judgment? None whatever; and the two cases are not substantially different. There has been no failure of the plaintiff’s action. The Court rendered a judgment, it is true, which is held, on the application of defendants therein, or complainants who claim under them, to be invalid. And it strikes us as pre-eminently just and equitable that those holding under the sheriff’s deed, and to whom the judgment, notes, and all claims connected therewith were assigned, should be subrogated to all the rights of said plaintiff, with the privilege of prosecuting said claim for their own use and benefit; and that the complainant, if he would take the land, must do so subject to the lien of the attachment, which has been in no manner set aside or dissolved. As to the right of Corbin & Dow to be thus substituted, we refer to Braught v. Griffith and McCleary, ante. Affirmed. Dillon and Cole, J. J., concurring.