Castner v. Styer

The opinion of the court was delivered by the Chief Justice. The second plea alleges that the writ cf attachment, issued at the suit of Castner v. David Smith, (by virtue of which the debt was attached in the hands of these defendants, as garnishees,) w'as not served in the mode prescribed by law. The record of the judgment recites that the sheriff returned, that, “ by virtue of the writ of attachment, he had attached a certain debt due to the said David Smith, in the hands of the said David Styer and Abraham Brittin, appraised at $500.” This is a valid return, and shows a substantial service of the writ. Thompson v. Eastburn, 1 Harr. 100 ; Welsh v. Blackwell, 2 Green 344. The plea avers that the sheriff did not comply with all the particulars prescribed by the statute, as to the mode of service. In fact the plea puts in issue both the fact of the service and the legality of the mode of service. Aside from all questions as to the form of the plea, it is vicious in substance. As a general rule, it is well settled that the official return of process, by an officer charged with its service, is conclusive upon the parties to the process and upon their privies, and cannot be impeached collaterally. In regard to mesne process, the defendant in the writ is estopped by the return of the officer from denying the truth of the return, or from showing that the requisites of the law were not complied with, as to the mode of service, even during the pendency of the suit. Slayton v. The — 248 — Inhabitants of Chester, 4 Mass. 478; 3 Cowen’s Phil, on Ev. 1087, note 741. And though the service of the writ be in point of fact irregular, the judgment founded upon it is conclusive, and cannot be impeached collaterally, either by the defendant himself or by third parties. In Case v. Pedfield, 7 Wend. 398, the defendant below offered to impeach a judgment in attachment, because a copy of the attachment was not left at the dwelling house or last place of abode of the defendant. The court say the evidence was properly excluded. The attachment was returned regularly served ; and it is the return which gives jurisdiction to the justice, and authorizes him to proceed. If a constable make a false return upon process, the judgment cannot be avoided on that ground. He is responsible in an action for the false return ; but the return itself, whether true or false, gives jurisdiction to the magistrate, and authorizes him to proceed. In Bean v. Parker, 17 Mass. 600, (which was an action against bail) the defendants, in pleading, denied that the defendant in the original action, for whom they had been bail, had been arrested. On a demurrer to these pleas, Parker; C. J., in delivering the opinion of the court, said, “ We think the third and fourth pleas cannot be sustained, because they deny the return of the officer upon the writ, which is matter of record, and is conclusive between these parties. The arrest could not be proved but by the return of the officer, nor can it be disproved by parol when it appears by the return to have been made.” “It has often been decided that a legal and sufficient return by an officer upon a precept cannot be controverted, except in a suit against the officer himself or his superior.” In Bott v. Burnell, 11 Mass. 165, Sewall, C. J., said, “ The sheriff’s return is conclusive as to the formal proceedings by the appraisers and himself, and is not to be controlled by other evidence.” In Wilson v. The Executors of Hurst, 1 Peters’ C. C. 441, which was a scire facias to revive a judgment rendered against the testator in his lifetime, the defendants offered to show that — 249 — the defendant in the original action had been arrested under a capias ad satisfaciendum, and discharged from arrest by order of the plaintiff. The sheriff had returned the ca. sa. non est inventus, and the court held that the return could not he contradicted. It may be urged that the garnishee in attachment is, in strictness, neither a party to the suit nor a privy, and, therefore, is not estopped by the sheriff’s return. And it may be conceded, for the purpose of the argument, that if the defendant had appeared to the writ of scire facias, he might have shown that he had paid the debt before he received notice of the attachment, and, consequently, that he owed the defendant in attachment nothing. Yet, even if he had appeared to the scire facias, his only defence would have been, that he did not owe the defendant in attachment. He could not then have called in question the regularity of the proceedings in attachment, (Welsh v. Blackwell, 2 Green 347,) much less can he do it now, when judgment has been rendered against him upon the scire facias, and there is no justice of propriety in permitting him to do it. The judgment in attachment, is clearly conclusive against Smith, the defendant in attachment. In a suit by him to recover his debt from Styer and Brittin, they might plead the attachment in bar of the action, and the plaintiff would be concluded by it. But when the plamtíff in attachment calls upon them to pay the debt, they attempt. to shield themselves from payment by an alleged illegality in the service of the attachment, and thus effectually avoid the payment of the debt to either party. If the garnishee in attachment can, in any case or for any purpose, contravene the sheriff’s return, by showing that the writ of attachment was not served upon him, (upon which it is unnecessary here to decide) he cannot do it in this case, and for the purpose sought to be effected by this plea. In fact if the plea can be available at all, it can only be by impeaching the judgment; and that can never be done collaterally, even by third parties. The second plea is bad in substance, and the demurrer must be sustained. The material question raised by the demurrer to the third plea is, whether by the 'law of this state, as it stood in 1839, — 250 — when these proceedings were commenced, the return of “ nihil ” to two writs of scire facias was a valid service of the writ upon a garnishee in attachment? It is admitted that, at the time of the service of the writ, the defendant was a citizen of this state, a resident within its jurisdiction, a subject of its laws. The question will therefore be considered solely in reference to the judgments of this state, by virtue of whose laws this was pronounced, without reference to the points which have been agitated touching the judgments of sister states, under the provision of the federal constitution. By the common law, a return of “ nihil ” to two writs of solve facias was in all cases a valid service of the writ. 2 Salk. 599 ; 2 Sellon’s Pr.196. By the attachment act, as it stood when these proceedings were commenced, (Rev. Laws 359, § 20, ) it was enacted, that “ if the garnishee on being returned zoarned on the scire facias, or' on two writs of scire facias, it be returned that he had nothing whereby to be summoned, or could not be found in the county, shall not appear, &c., then judgment shall be entered against such garnishee by default.” By the supplement to “ the act to regulate the practice of the courts of law,” passed on the 28th of February, 1820, (Rev. Laws 692, § 5,) it is enacted, that “henceforth no judgment shall be entered in any of the courts of record of this state, on suits which shall be commenced by Writs of scire facias or execution issue on judgments attempted to be revived by scire faoias, unless the sheriff, or other officer, to whom the writ of scire facias shall be directed, shall actually have served the same, either personally on the defendant, or by leaving a copy of the writ with some white person of the age of fourteen years, at his or her usual place of abode, at least six entire days before its return, or as directed in the next section of this act.” The sixth section of the act provides, that whenever a writ of scire facias shall, issue, either to recover a forfeited recognisance or to revive a judgment, if the defendant cannot be found by the sheriff or officer to whom the writ is directed, the plaintiff may proceed as if the writ had been served, provided the plaintiff first cause the writ to be published in the manner therein spe — 251 — cified, or cause a copy of the writ to be served on the defendant, wherever found, at least twelve days before the return thereof. The fifth section, it will be observed, includes all writs sued out, either at the commencement of a mit or to revive a judgment. The sixth section, on the contrary, is limited in terms to writs of sc ire facias issued to recover a forfeited recognisance or to revive a judgment. ISlow a writ of scire facias to recover a forfeited recognisance is but one example of numerous writs of scire facias which issue at the commencement of a suit, so that, literally construed, the prohibition of the fifth section is much broader than the authority conferred by the sixth. The two sections, however, were indubitably intended to apply to the same subject matter, and should be construed to operate eoextensively. Upon any other construction, there would be many cases in which no judgment on the writ of scire facias could possibly be recovered. The common law practice of proceeding would be taken away, and no new method provided by the statute. It is clearly incumbent, therefore, upon the court, in construing the statute, to reconcile the provisions of the two sections, and to apply them to the same subject matter. The only question must be, whether the general language of the 5th section is to be restrained by the provisions of the 6th, or whether the specific enumeration of the latter is to be enlarged by the more comprehensive phraseology of the former. Viewing the act of 1820 as a mere supplement to the practice act, (as its title indicates it to be) in connection with the fact, that the writ of scire facias is most frequently used, either to recover forfeited recognisances or to revive judgments, it seems at first view not improbable that the legislature designed to abolish the common law practice in those eases alone, and did not intend to interfere with the practice upon special writs of scire facias authorized by statute. And this construction derives countenance from the fact, that, in the revision of 1820, the act in question stands upon the statute book side by side with at least two statutes expressly authorizing the return of nihil upon two writs of scire facias as a valid service of the writ. I refer to the twentieth section of the attachment — 252 — act (Rev. Laws 359) and to the third section of the supplement to the act concerning sheriffs (Rev. Laws 303). But a more careful examination of the language of the law, and of the history of legislation upon the subject, will show that this construction cannot be adopted. The fifth and sixth sections of the act of 1820 had their origin in an act passed on the 14th of March, 1806, (Pamph. Laws 706, cap. 125). This act contains but two sections, substantially the same as the fifth and sixth sections of the act of 1820, excepting a change in the mode of publication introduced by the act of 28th November, 1809, (Pamph. Laws 215, cap. 59). The attachment act was passed in the year 1797. The supplement to the act concerning sheriffs, to which allusion has been made, was passed in 1796 ; so that, at the time of the passing of the act concerning writs of scire facias, the return oí “nihil” upon two writs, when the defendant could not be found, was universally recognised, both at common law and by statute, as a valid service of the writ of scire facias. The title of the act of 1806 is “ An act respecting writs of scire facias.” The preamble recites, that “ whereas, by the existing laws of this state, a writ of scire facias to revive a judgment, having been twice issued and returned by the sheriff or other officer to whom directed, nihil, or' not served, is presumed to have amounted to a service of such writ, and when a suit is commenced by writ of scire facias, and the return thereon by the officer the same as above stated, a judgment is entered the same way as in actions commenced by other process, whereby undue advantage is frequently obtained over the parties not having due notice thereof.” The evil designed to be remedied was the rendition of judgment or award of execution against defendants, without the actual service of process, whereby an undue advantage was obtained over the party not having due notice, an evil which resulted to the defendants in all writs of scire facias issued, either to commence a suit or to revive a judgment, and to none more strongly than to the garnishee in attachment. The language, moreover, as well-of the preamble as of the first section of the act, expressly includes all suits commenced by writ of scire facias. A scire — 253 — faoias to revive a judgment is but a continuation of the original action, and there are certain other writs of solve faoias known to the common law (of which the writs of soire faoias quave exeoutionem non and ad audiendum errores may be mentioned as illustrations) winch are not the commencement of a suit. Yet a soire faoias, though not an original, but a judicial writ, is properly an action, and in the nature of a new original, and hence the issuing of the writ, though founded on a record, is properly regarded as the commencement of a suit. Attwood v. Burr, 2 Salk. 603 ; Grey v. Jones, 2 Wils. 251 ; Comber. 455 ; 2 Sellon’s Prac. 186 ; 2 Arch. Prac. 76 ; 2 Bouvier’s Law Dict. “ Soire Faoias.” Every writ whereto the defendant may plead, be it original or judicial, is in law an action. 1 Inst. 290, C. In the ease of Earl v. Earl, which was a proceeding commenced by special soire faoias under the supplement to the act respecting sheriffs (Rev. Laws 303), this court held it to be an action, and governed by the same principles respecting bail in error as other personal actions. All writs of scire faoias, then, which ean be regarded as the commencement of a suit, and upon which judgment may be rendered, (of which the soire faoias against the garnishee in attachment is clearly one) are within the evil designed to be remedied by the act respecting writs of soire faoias. They are within not only the spirit, hut the letter of the first section of the act, which declared that no judgment shall be rendered in any court or suits commenced by writs of soire faoias, unless the writ be personally served. This being the true construction of the fifth section of the act of 1820, the sixth section must, as has been said, be construed as applying to the same subject matter. The sixth section, it may be added, is clearly remedial in its nature, and may therefore be liberally construed to advance the ends of justice. Although these statutes continued in force down to the revision of 1846, a period of forty years, no judicial decision appears to have been made upon the point now under consideration. The case of Earl v. Earl, which was repeatedly before this court and the Court of Errors, was originally commenced in — 254 — the Burlington pleas, by writ of solve faoias, under the supplement to the act concerning sheriffs, already alluded to. After the first writ had been returned, that the defendant had nothing in the county whereby he could be summoned, and that he could not be found therein, the soire faoias was published, under the provisions of the act of 1820, and that fact is spread upon the record. The soire faoias, in that case, called upon the defendant in execution to show cause why land, levied upon by virtue of a writ of soire faoias by a former sheriff, should not be sold to satisfy the execution. It was neither a soire faoias to recover a forfeited recognisance, nor to revive a judgment, nor was it in the nature of either, and therefore clearly not within the letter of the sixth section of the act of 1820. This cause involved a large amount of property. It was contested with great earnestness at every stage of its progress. It was known that it would be so before the writ issued. The attorneys, upon both sides, were among the most skilful and experienced practitioners at the law. It may be said, without invidiousness, that in this department, of professional labor, they had no superiors. They were both at the bar, and in practice when the act of 1806 was passed. And hence the fact, that the practice was adopted in that case without question under such circumstances, is strongly indicative of the true construction of the act of 1820. In the case of Welsh v. Blackwell (reported in 2 Green 344), which was a writ of soire faoias against a garnishee in attachment, upon the return of the writ at September term, 1832, as appears by the minutes of the court, the following rule was entered : “ It appearing to the court that the defendant hath removed without the jurisdiction of this court, it is ordered, that the soire faoias be published in the National Union, for the period prescribed by the statute in such case made and provided.” At February term, 1832, the rule for publication was continued, and at May term, proof of publication having been filed, the plaintiff filed his declaration, and the defendant entered his appearance. This, too, was a contested case, but no exception was taken to the proceeding. The order of the court certainly has not the weight of a judi — 255 — cial determination of the question, but the practice adopted serves to show the sentiments, both of the court and of the counsel, in regard to the true construction of the statute. I am of opinion, therefore, that since the act of 1806, no judgment could have been rendered in a suit commenced by noire facias against the garnishee in attachment, or in any suit whatever commenced by scire facias, except upon an actual service or publication of the writ, in the mode prescribed by statute; and that, consequently a judgment rendered against the garnishee, upon the return of nihil to two writs of scire facias, is null and void. The writ was not served as prescribed by law, and the court had no jurisdiction, actual or constructive, of the person of the defendant. The question still remains, what judgment can the court render upon these pleadings? The plaintiff’s declaration is in due form. Judgment cannot be rendered against him on the ground of any defect in the declaration. The difficulty is disclosed by the defendant’s plea. He sets out a record, which he alleges to be the one upon which action is brought, and pleads in avoidance of it. The plea is radically defective. The record shows that there wrere two writs of scire facias returned nihil, and the plea alleges merely that the scire facias was not published, as prescribed by the statute. But when the defendant has left the jurisdiction, or cannot be found to be served with the writ, the statute provides that the writ may either be published, or a copy served on the defendant personally, wherever he may be. The mere fact that the writ was not published, standing alone, is an immaterial averment. It may be true, and yet the writ may have been properly served. The plea should have gone farther, and denied the personal service of a copy. The court cannot, in the present state of the pleadings, give judgment for the defendant without affirming the validity of the defendant’s plea. Judgment cannot be rendered against the plaintiff on the ground that the record set out by the defendant is radically defective. If the plea be held sufficient, the plaintiff may withdraw his demurrer and reply; and, by his replication, he may set out a record variant from that set out by the defendant, and a record valid upon its face. The court — 256 — cannot, therefore, at this stage of the pleadings, render judgment for the defendant upon the assumption that the suit is brought upon a void judgment. There must be judgment for the demurrant on the demurrer to the third plea, with leave to the defendant to amend his plea or plead anew, if he elect so to do. There is nothing in the objection, urged upon the argument, that this plea amounts to the general issue, and, therefore, that it cannot be pleaded specially. Admitting that the defendant may avail himself of the objection under the general issue, it does not therefore follow that he may not plead it specially. By his special plea, he does not set up that there is no such record as that declared upon. But he insists that the judgment contained in the record is null and void ; and he may, by special plea, test the validity of that judgment Let judgment be entered accordingly. Nevius and Ogden, Justices, concurred. Cited in Van Doren v. Horton, 1 Dutch. 207; Boyd v. King, 7. Vr. 136.