Weaver Grocery Co. v. Cain Milling Co.

Smith, C. J., delivered the opinion of the court. This is a proceeding in attachment, instituted in the-court below by appellants against appellee on the ground that appellee is a foreign corporation. The sheriff in execution of the writ took into his possession certain personal property, hut failed to obtain service upon appellee. The property was claimed by the First National Bank of Atchison, Kan., and upon affidavit thereto being made and bond given the property was delivered to it. Appellee by its attorneys filed a plea to the jurisdiction of the court, alleging that it is a nonresident of the state, had not been served with process, and was not the owner of the property levied upon. Appellant moved the court to disregard the plea and to-proceed with the trial of the cause on.its merits' for the-reason that appellee had, by filing the plea, submitted itself to the jurisdiction of the court, which motion was overruled. Issue in short, by consent, was then joined on the plea, the cause was submitted to the court to be792 tried without a jury on that issue, and judgment was rendered, sustaining the plea and dismissing the action. . Where a writ of attachment is levied upon the property of a nonresident defendant, hut no service of process upon the defendant is had, the proceeding becomes simply one in rem for the condemnation of the property and the application of the proceeds to the payment of the alleged debt due by the nonresident to .the plaintiff, unless the defendant should voluntarily .appear and submit his person to the jurisdiction of the court. If he has no interest in the property levied on, he cannot be injured by the seizure thereof, and therefore cannot be. heard to complain thereat. If the property is in fact owned by a third person, the statute provides the procedure for enforcing such claim, which procedure is exclusive. The ownership of the property, therefore, will, become material only when the claim threto of the First National Bank of Atchison, Kan., •comes on to be heard. Thornley v. Lawbaugh, 31 N. D. 651, 143 N. W. 348, 47 L. R. A. (N. S.) 1127, and authorities cited in note thereto at page 1131. Werner v. Sheffield, 89 Miss. 12, 42 So. 876, relied on by appellee, deals with the limitation expressly imposed upon the .jurisdiction conferred upon chancery courts in attachment proceedings under section 536, Code of 1906, Hemingway’s Code, section 293, and consequently has no application here. Reversed and remanded.