Bray v. McClury

Adams, Judge, delivered the opinion of the court. This was an action of ejectment, commenced in the Dade Circuit Court, for lands lying in that county, and taken by change of venue to the eounty of Greerfe. Both parties trace their title to John N. Ferguson as the original source,who was formerly seized of tlie premises. The record shows, that the Merchants Bank of St. Louis brought a suit by attachment against Ferguson and others on a bill of exchange in 1865 in the Dade Circuit Court. The petition was in the usual form, [132] verified by affidavit, as the practice act required at that tina e. To the petition was appended an additional affidavit, merely stating that to the best of affiant’s knowledge and belief the defendants were non-residents of the State. TJpon the petition thus verified, and the additional affidavit of non-residence, a writ of attachment was issued, and was by the sheriff levied on the lands in dispute. An order of publication was made and duly published in a newspaper in pursuance of law. The defendants did not appear and were not served with a summons. At a subsequent term of the court a special judgment was rendered in the cause against the defendants and the attached property. On the margin of the record of this judgment a memorandum, “erroneous entry,” is written. On a subsequent page is entered another judgment, which appears to be between the same parties and is in the form of a general judgment instead of a special one. Afterwards, the clerk issued a general execution, which was levied on the attached lands, and they were sold by the sheriff to the defendants, and they are the lands in controversy. A deed was made by the sheriff reciting the proceedings in the attachment suit, a rendition of the special judgment, and a sale thereunder, and was duly acknowledged. At the instance of the plaintiffs the court excluded this deed as evidence at the trial, and instructed, that the sheriff’s deed offered in evidence was wholly void and conferred no title on the defendants to the lands sued for. A verdict and judgment were rendered for plaintiffs, and a motion for a new trial was overruled. It is obvious from this statement that the main point here is, whether the writ of attachment and the proceeding thereunder were void, Before an attachment can issue, the statute law requires that the plaintiffs shall file an affidavit in the clerk’s office of the- court in which the suit is brought, stating that he has a just demand against the defendant and the amount thereof which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, and that he has good reason to believe, and does believe, in the exist [133] ence of one or more of the causes, which according to the provisions of the statute would entitle the plaintiff to sue by attachment. (R. 0., 1855, p, 210, §§ 5, 6.) There was no such affidavit made in this case, although the statute requires it before a plaintiff is entitled to an attachment. This requirement of the statute is jurisdictional, and not simply directory. The court or clerk has no jurisdiction to issue an attachment without the required affidavit. The affidavit of non-residence was made to procure an order of publication, and contained none of the essential requisites of an affidavit for the writ of attachment. As there was no affidavit at all filed for the purpose of suing out the attachment, it is unnecessary to discuss the question,whether a defective affidavit could be amended so as to sustain the attachment. In my judgment that could be done; but as that question is not in the case, it is unnecessary to decide it. 2nd. But it is urged that as the writ of attachment was in fact issued and levied on the lands in dispute, that brought them before the court and gave the court full jurisdiction over them to render a special judgment, without regard to any prior or subsequent proceeding; that this is in the nature of a proceeding in rem, and the land attached is the res, and the court can render a valid judgment for sale of the land without complying with any of the other requisites of the statute; that the sale and deed of a sheriff would pass the title whether there was any affidavit at all, or any order of publication made or published. This proposition is so monstrous, and would lead to such ruinous consequences, that I cannot yield it my assent. The authorities seem to be conflicting in the different States on this question. Those affirming the proposition base their decisions on the doctrines of maritime law. But there is very little analogy, if any, between attachment suits,which derive their existence exclusively from statutory law, and proceedings in admiralty. In maritime cases, the ship or vessel libelled is the real party defendant. The doctrine of the maritime- law is, that the whole world is bound by the proceedings whether notified or not. If notice is required, it is [134] merely directory and not necessary to give jurisdiction, and a judgment rendered against the ship or vessel,with or without notice, is binding, and a sale under it passes the whole title. This doctrine is not applicable to a statutory attachment. The real suit is in favor of and against individual persons. The property itself is, in no sense of the word, a party to the suit, but is brought before the court as ancillary or in aid of the remedy against the real party,who is presumed to be the owner of it. The attached property does not represent the defendant, but is merely held in custodia legis to satisfy the debt that may be proven to exist against the defendant. How can a judgment be rendered against the defendant’s property, unless he is before the court by service oí summons or personal appearance, or by constructive notice by order of publication duly published when that is required ? The statute must be substantially complied with in order to render the jurisdiction complete. There must be first a petition and the necessary affidavit to give jurisdiction to issue the writ of attachment, and when the attachment is levied, the court may proceed to take care of the property, and if necessary, may sell perishable property and keep the proceeds of the sale in custody till final judgment. But to warrant any such judgment, the defendant must be brought before the court in the manner indicated by the statute, either by service of summons or appearance, or by an order of publication duly made and duly published. These are all jurisdictional steps, and not merely directory, to render the jurisdiction complete. I do not say that the Legislature could not order attached property to be applied to the payment of a debt of a non-resident without any notice at all. It has not attempted to do so, but has thrown these jurisdictional safeguards around if to be observed, before a defendant can be robbed of his estate by an ex parte proceeding. A court of equity has the power to pass title to real estate within its jurisdiction. The first step required is to file a petition, describing the land to be acted on and where situated. That brings the land before the court, and makes it a case in [135] the nature of a proceeding in rem. The land being the res is as much before the court as it is when attached, and the court has precisely the same jurisdiction over it. Can the court pronounce a decree divesting the title of the defendant, and vesting it in the plaintiff,without issuing any writ, and without any order of publication duly made and published, and without any appearance? Would not such a decree, if valid, be judicial robbery : and yet that is precisely the power contended for in attachment suits. 3rd. If there had been any authority to render any judgment at all in this case, the special judgment was the proper one, and a general judgment, simply on an order of publication, was void. The execution being general was only irregular. As it was only levied on the attached property, as to that property it amounted to a special execution, and the error might at any time be corrected by an amendment mine pro tunc. As there was no. affidavit to warrant the attachment, the subsequent proceedings were void. This leads to an affirmance of the judgment. Judgment affirmed. Judges Napton and Tories file a separate concurring opinion. Judge Wagner files a dissenting opinion. Judge Sherwood, having been of counsel, did not sit.