Moore v. Vrooman

Per Cueiam: Mrs. Moore brought replevin for seventy bags of wheat, and the wheat was seized under the writ and delivered to her. The defendant was sheriff, and set up in justification that he took and held the wheat under certain justice’s executions placed in his hands against one Addison C. Moore. The cause was tried without jury, and on the trial, when the justice’s judgments and executions were offered in evidence, it appeared that the suits were commenced by long summons, and the defendant admitted as matter of fact, a circumstance which did not appear in the proceedings, that the plaintiffs in such judgments were non-residents of the 527 county when tbe summons were issued. Tbe counsel for Mrs. Moore objected that tbe judgments were void, and hence inadmissible, on tbe ground that tbe suits should not have been commenced by long process. Tbe objection was overruled, and we think correctly. Tbe statute 5264, C. L.) is not imperative that tbe summons shall be a short one in case tbe plaintiff is a non-resident. It is simply permissive in that case. In tbe nest section, which regulates tbe time where tbe defendant is a non-resident, tbe language is different, and this difference was undoubtedly meant to mark a distinction. It is there provided that the summons “shall” be short, and not, as in tbe other, that it “may” be. If, however, the language of the first was the same as that in the last, we should hesitate before saying that the judgment could be held void in a collateral proceeding, and under the circumstances presented here. The court found generally that the defendant did not unlawfully detain the property as alleged, and further that he had a lien on or special property in the wheat, to the amount of one hundred and forty-eight dollars and. ninety-four cents, and was not the general owner, and that Mrs. Moore was the general owner subject to the defendant’s lien; and then proceeded to give judgment in the usual form under § 6754, C. L., in favor of defendant for the foregoing amount. No special findings were requested, nor was any exception taken to the finding made. It is objected that the statute just cited required a more particular finding to warrant the judgment, and. especially in regard to the amount of the respective interests. We think otherwise. If the plaintiff desired farther findings, it was incumbent upon her to request them. The judgment is affirmed, with costs.