O'Donnell v. Magnolia Petroleum Co.

Hart, J., (after stating the facts). A reversal of the judgment is first sought on the ground that Chas. H. Sevick is a nonresident of the State, and that the Magnolia Petroleum Company did not file the bond provided by § 6261 of Crawford & Moses’ Digest before it obtained judgment against Sevick in its attachment suit. The ground of the attachment of the Magnolia Petroleum Company against Sevick was that he was a nonresident of the State, and constructive service was had upon him. Section 6261 provides that, before judgment is rendered against a defendant constructively summoned, who has not appeared, it shall be necessary that a bond be executed to such defendant by the plaintiff, to the effect that, if the defendant, within the time prescribed by law, shall appear, make defense and set aside the judgment, the plaintiff shall restore to him the property taken under the attachment and pay to the defendant such sum of money as may be awarded him. The bond required by this section of the statute was not given by the Magnolia Petroleum Company before the judgment in its favor against Sevick.in the attachment case, but it was given after the judgment had been obtained. It is true that the statute should have been complied with and the bond given before judgment, but the Magnolia Petroleum Company did not lose its lien under the attachment because it failed to give the bond at the time required by the statute. The writ of attachment was issued and delivered to the sheriff of White County on the 24th day of January, 1922, in the case of Magnolia Petroleum Company against Chas. H. Sevick. The writ of attachment in the case of O’Donnell against Sevick was not issued until the 28th day of January, 1922. Therefore the writ of attachment of the Magnolia Petroleum Company was a paramount lien on the attached property, and it was not lost by the failure of the Magnolia Petroleum Company to give the bond required by § 6269 before the rendition of the judgment in its attachment case. Again, it is claimed that the judgment in the present case should be reversed because the court erred in rendering a personal judgment in the attachment case in favor of the Magnolia Petroleum Company against Chas. H. Seviek. Constructive service was had in that case against Seviek, and it is claimed that it was error to render a personal judgment against Seviek in favor of the Magnolia Petroleum Company. An error in this respect would not cause the Magnolia Petroleum Company to lose its lien secured by the issuance and levy of the writ of attachment in that case. The court sustained the writ of attachment, and the lien, obtained by the issuance and the levy of the writ still continues. It is next insisted that the affidavit for attachment made by the Magnolia Petroleum Company against Seviek was defective in some respects. It need only be said, in this connection, that, even if the affidavit was irregular, it was substantially in the language of the statute and was sufficient to form the basis of the issiiance of the writ of attachment and its levy upon the property of the defendant in the attachment suit. Hence the lien was not lost on account of any mere defect in the affidavit for the attachment. It results, from the views that we have expressed, that, even if the pleadings and other proceedings in the attachment suit of the Magnolia Petroleum Company against Chas. H. Seviek are properly in the transcript in this case, the judgment of the circuit court was correct. It is admitted by counsel for appellee that the proceeding’s in the attachment case of the Magnolia Petroleum 'Company against Chas. H. Seviek are in the transcript, but it is insisted that they have not been properly brought in the record. Without deciding that question, we have treated them as being properly in the record, and are of the opinion that the judgment should be affirmed on the merits of the case. It is so ordered.