Johnson v. Gilkeson

Martin, 0. This is an action of ejectment. Both parties claim title under John ~W. Brockman. The plaintiff read in evidence, a deed from him executed on the 13th day of March, 1868. The defendant submitted a sheriff’s deed made in pursuance of an attachment suit against him, in which levy of attachment of the same land was effected on the 31st day of January, 1866. The court rendered judgment in favor of defendant, holding that the sheriff’s deed to defendant, constituted the superior title. Prom this judgment the plaintiff has appealed. She contends that the attachment proceedings were void, on account of a defect in the affidavit, setting forth the non-residence of defendant, which defect, she claims, left the court without jurisdiction to render a valid j udgment in the case. The validity of this identical affidavit has been passed upon by this court, in the case of Gilkeson v. Knight, 71 Mo. 403, in which its sufficiency-was approved. It was by virtue of • the same affidavit and sheriff’s deed, that the defendant in this case, obtained possession of the land which is now sued for. The plaintiff in this case, along with others, was defendant in the case referred to, and after being ejected, she now seeks to get back again by overturning the samé title which was held sufficient to put her out. As the objections to the affidavit have been considered and settled in this court, I will pass them by as not open to argument again. Since the termination of the former case, the learned and ingenious counsel for plaintiff, seems to have extended his examinations a little further into the title, which was then asserted for recovery, and is now interposed for defense. He maintains that the attachment was void on account of a defect' in the return of the sheriff, which he argues is •equivalent to no return at all. The return of the sheriff? [59] reciting a levy of tlie attachment, was indorsed, not on the writ of attachment, but on the petition which was annexed to the writ. The petition, along with the writ attached thereto, as required by law, was returned into court. An indorsement of the return on the petition could, at most, be only an irregularity in the form of doing what the law required, of the sheriff, and not in the substance of the act done. Such a slight departure in form, could not avoid the jurisdiction of the court in proceeding to judgment. The return was as follows: “ I, T. W. Williams, sheriff of Johnson county, Missouri, do certify, that I executed the within petition and writ of attachment, on the 31st day of January, 1866, at the hour of ten o’clock in the forenoon, by levying the same, upon all the right, title and interest of the within named, John W. B rockman, in and to the following described real estate, in Johnson county, state of Missouri, to-wit: (Here follows description of the land). An 11 further certify, that said defendant cannot be found in my county. T. W. Williams, sheriff.” The counsel for plaintiff’ objects to this return for failing to state that the attachment was made in Johnson county. As the return recites, an attachment of land in Johnson county, giving its location, the presumption that he went into some other county to do this, would be an unreasonable one to impeach the validity of the act recited. It is also objected, that the return that the defendant could not be found,.relates to the 31st óf January, 1866, the day the writ was issued. I do not think this act necessarily refers to the day of the levy of the attachment. If it did, it could not impeach the validity of the attachment, which rested upon the affidavit of non-residence and levy of the writ. Return as to the person of the defendant was not necessary to give jurisdiction as to the property attached. It is further objected, that the sheriff, in his return, uses the word “levy,” instead of “ attach,” as contemplated by statute. This, along with some other objections raised by counsel for plaintiff’, are altogether too refined to command serious attention under [60] any system of enlightened jurisprudence. The judgment was without error, and should he affirmed, and it is so ordered.