Pracht v. Pister

The opinion of the court was delivered by Brewer, J.: On November 21,1881, the firm of Pracht, Schultz & Co. recovered a judgment before a justice of the peace against the defendant for the sum of $260.20. Of the validity of this judgment there is no question. In fact, the judgment was rendered upon the personal admission of the defendant. Thereafter, without issuing execution and for some inexplicable reason, the plaintiffs filed an affidavit for an order of attachment. The order of attachment was issued and levied upon certain personal property, to wit, fifty acres of growing wheat; and upon the determination of this attachment proceeding an order of sale was issued commanding the constable to satisfy the judgment by a sale of the property attached. Under this writ it was sold to one of the plaintiffs in the judgment, and in the presence of and without any objection from the defendant. . The question now is, whether in a collateral proceeding the validity of this sale can be challenged by the defendant. We have in this state no form of execution prescribed by statute. [572] The statute, (Comp. Laws of 1879, ch. 81, -§ 139,) simply directs what the execution shall contain, and the order of sale contains all the requisites of an execution prescribed by said section, except in this respect: that section provides that the process direct the officer to collect the amount of the judgment out of the personal property of the debtor. This order of sale, reciting a levy of an order of attachment upon the specific property, commands the officer out of said goods to cause the said judgment to be satisfied. In other words, instead of being a general execution commanding the officer to satisfy the judgment out of any personal property of the defendant, it was a special order commanding him to satisfy it out of certain named property. Upon the process and in the presence of defendant the property was sold. No motion was made to set aside the process or the sale; in fact there was no direct attack upon the proceedings. The question is whether those proceedings were so irregular and defective that they must be adjudged void, and therefore open to collateral attack. It is conceded that the attachment proceedings amounted to nothing. The statute makes no provision for an attachment after judgment, nor indeed in such case is there any need of such proceedings. The only purpose of an attachment is to seize and hold the property until the .claim of the plaintiff can be adjudicated. After judgment, an execution will seize anything that an attachment order would; so that the latter is unnecessary. Being therefore unauthorized by statute, and unnecessary, it may be disregarded. And the question really comes down to this: If the justice issues a writ commanding the officer to satisfy the judgment out of certain personal property, when he ought to have issued a writ commanding him to satisfy it out of any personal property, is this writ and a sale under it void? We think not. The greater includes the less. The power to command the seizure and 'sale of any personal property includes the power to seize and sell certain specific property. (Swiggart v. Harber, 4 Scam. 364; Rockwell v. Cuthbert, 21 Ill. 279; Corriell v. Doolittle, 2 G. Greene, (4 Iowa,) 385; [573] Paine v. Mooreland, 15 Ohio, 436; Cooley v. Brayton, 16 Iowa, 10; Peter v. Haskell, 11 Me. 177.) Doubtless such an order is irregular, and could be set aside on motion; but if the defendant makes no objection, permits the sale under it, he should not be permitted thereafter to object that it is void. The defect is not a want of power, but a mere irregularity-in proceeding; and in collateral proceedings mere irregularities are not sufficient to defeat the title. (Paine v. Spratley, 5 Kas. 525; Freeman on Executions, §343, and cases cited in the note.) But it is further objected, that under this order of sale the officer would make no levy; that the levy under the order of attachment was a nullity, and that a levy is indispensable to a valid sale. A levy means this, and nothing more: the taking possession of property by the officer. When there-is possession, absolute or constructive, there is a levy, and in any collateral proceeding it is enough that there was such possession. Here the only possession which could have been taken of the property was in fact taken under the order of sale. Now although such taking of possession was unauthorized, yet the officer could do no more if he had been authorized; and having taken such possession, and being in such possession, he made all the levy that was necessary to uphold his sale. He could have taken no further possession if a general execution had been placed in his hands. Hence we think that all the levy that was indispensable was in fact made. (Freeman on Executions, § 274.) We therefore conclude that notwithstanding the defects, they were not sufficient to invalidate the proceedings as against a collateral attack. The judgment of the district court mijst be reversed, and the case remanded for a new trial. - All the Justices concurring.