Ames v. Parrott

Decision Date22 May 1901
Docket Number9,489
Citation86 N.W. 503,61 Neb. 847
CourtNebraska Supreme Court

ERROR from the district court for Douglas county. Tried below before DICKINSON, J. Reversed.


Hamilton & Maxwell, for plaintiff in error.

Cowin & Abbott and Lee Helsley, contra.

Argued orally by Henry E. Maxwell, for plaintiff in error, by Lysle I. Abbott, contra.




Parrott hereinafter referred to as plaintiff, sued Ames, hereinafter styled defendant, setting up five causes of action for services rendered and money loaned. An order of attachment was issued at the instance of the plaintiff and levied upon the lands of the defendant. The latter moved to discharge the attachment on the ground that the levy was irregular and invalid, and is here upon error from the order of the court overruling such motion, and from the judgment of the court in favor of the plaintiff upon the main case.

The sheriff's return shows that upon receipt of the order of attachment he went to the lands to be levied upon and attached them "in the presence of J. B. Parrott and F P. Salmon, two residents of Douglas county, state of Nebraska." It appeared in evidence upon the motion to discharge the attachment, and the court found, that "the J. B. Parrott named by the officer in his return to said order of attachment and Jerome B. Parrott, plaintiff herein, are one and the same person," and it does not appear and is not claimed that any person other than said Parrott and Salmon was present at the time of the levy. For these reasons the defendant contends that the requirements of the statute were not complied with and that the levy is invalid. The Code (section 205) provides that in levying an attachment the officer "shall go to the place where the defendant's property may be found, and there in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff; and the officer, with the said residents, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and residents, and returned with the order." Is the plaintiff in attachment, being a resident of the county, a proper person to witness the levy and declaration thereof by the sheriff under this section? Requirements of this nature are very common in attachment statutes, and are to be found in some of the earliest statutes upon the subject. In the most recent statutes the tendency is to substitute a requirement that a copy of the writ and proceedings be filed with the recorder or register of deeds. But in either case, the obvious purpose is to make the levy public and notorious, to prevent attachment liens from attaching secretly and by surreptitious entries and indorsements, and to enable the other party to inquire into the date of and circumstances attending the levy; and the courts have so construed them. Bryant v. Duffy, 128 Mo. 18, 30 S.W. 317; Root v. Railroad Co., 45 Ohio St. 222, 12 N.E. 812. If this is the purpose of the requirement, we think that it follows that no person having a direct interest in the levy is a competent witness thereof.

In the analogous cases of attesting witnesses to deeds and mortgages it is well settled that they must be without direct or certain legal interest in the act attested. Interested parties have also been held disqualified from attesting a chattel mortgage (Seibold v. Rogers, 110 Ala. 438, 18 So. 312), or a signature to a note by mark, required by statute to be attested. Chadwell v. Chadwell, 98 Ky. 643, 33 S.W. 1118. The object of requiring attestation of deeds and other instruments is to enable the other party to inquire into the circumstances attending the sealing and delivery (Markley v. Swartzlander, 8 Watts & Serg. 172); and although the incompetency of grantees or parties directly interested in conveyances to attest their execution has sometimes been put upon the ground of common law incapacity to testify to the facts in court, and sometimes upon construction of particular statutes (Child v. Baker, 24 Neb. 188, 38 N.W. 725), the prevailing and better view is that public policy is the true basis thereof. Amick v. Woodworth, 58 Ohio St. 86, 50 N.E. 437; Donovan v. St. Anthony & Dakota Elevator Co., 8 N.D. 585, 80 N.W. 772. We are not unaware, in reaching this conclusion, that the common law disqualifications of witnesses by reason of interest have been done away with; nor have we overlooked that disqualification of interested attesting witnesses having been rested by some upon incompetency to testify in court, the removal of the latter disqualification has sometimes been thought to obviate the former. Fisher v. Porter, 11 S.D. 311, 77 N.W. 112. But we prefer to adhere to those authorities which recognize an inherent disqualification resting upon public policy and unaffected by the change in the rules of evidence. In Amick v. Woodworth, supra, the court says (p. 100): "The true reason of the disqualification we apprehend is, that to permit a grantee to attest as a witness the execution of an instrument made to himself, or take its acknowledgment as an officer, where its attestation and acknowledgment are necessary to give it validity, would be against public policy, and practically defeat the real purpose of the law, which is to prevent the perpetration of frauds on the grantors, and afford reasonable assurance to those who deal with or on the faith of such instruments that they are genuine and represent bona fide transactions." In Donovan v. St. Anthony & Dakota Elevator Co., supra, the court, quoting from the foregoing, adds: "But not only is the construction contended for by respondent repugnant to the intent and purpose of the statute, but it is, we think, entirely out of harmony with its language as commonly understood; for we think men generally understand it to mean the calling in of a person who is not a party to a transaction to hear and see its consummation, and subscribe his name as a witness to what the parties have in his presence consummated, and that parties to the contract are disqualified to act in that capacity; and such is the weight of authority." In Winsted Savings Bank v. Spencer, 26 Conn. 195, it is held that a statute requiring conveyances of land to be attested by two witnesses implies that the witnesses are to be disinterested. Likewise in Horbach v. Tyrrell, 48 Neb. 514, 521, 67 N.W. 485, this court said: "It would seem that on grounds of public policy an officer should be disqualified from taking acknowledgment whose direct and beneficial interest would be subserved in having the conveyance made which he acknowledged." Without citing other instances, it is evident that where the law, in order to secure evidence of some act, requires it to be done in the presence of, or attested by, a specified number of persons, an implication arises that these persons shall be such as are not directly interested in the act and beneficiaries thereof. This conclusion is rendered the more certain in respect to the statute here in question because it is provided that the same persons who witness the levy shall inventory and appraise the attached property, which could not be done, with any propriety, by an interested party. As Parrott, plaintiff in the attachment, was not a competent witness of the levy thereof, the case stands as if the sheriff had made his levy and declaration in the presence of one witness only, and we have further to consider the effect of such an irregularity thereon.

It is a well established rule that where there is a special statutory provision respecting the manner in which levy of an attachment shall be made, it must be strictly observed, and that departure therefrom will invalidate the levy. 1 Shinn Attachment & Garnishment, sec. 207; Drake, Attachment, secs. 194, 236a; 3 Ency. Pl. & Pr., 54; Fairbanks v. Bennett, 52 Mich. 61, 63, 17 N.W. 696; Cary v. Everett, 107 Mich. 654, 65 N.W. 566; Main v. Tappener, 43 Cal. 206; Norvell v. Porter, 62 Mo. 309; Gates v. Tusten, 89 Mo. 13, 21, 14 S.W. 827; Bottoms v. McFerran, 19 Ky. L. Rep. 1266, 43 S.W. 236. Not only have very small irregularities in other respects been held fatal to the levy, but the courts have uniformly enforced strict observance of requirements designed to insure publicity and notoriety and to preserve evidence of the time and circumstances of the levy. Failure to levy or make declaration thereof before witnesses, under substantially the same requirement as in our statute, has been decided to be fatal repeatedly. Tiffany v. Glover, 3 Greene [Ia.], 387, 393; Marnine v. Murphy, 8 Ind. 272; Earthman v. Jones, 10 Tenn. 484, 2 Yer. 484; Cabeen v. Douglass, 1 Mo. 336. Under more recent statutes prescribing some form of written or recorded notice in addition to or as a substitute for declaration before witnesses, strict and entire compliance with the statutory requirements has been exacted. Stanton v. Boschert, 104 Mo. 393, 16 S.W. 393; Bryant v. Duffy, 128 Mo. 18, 30 S.W. 317; Sharp v. Baird, 43 Cal. 577; Smith v. Brown, 96 Ga. 274, 23 S.E. 849; Thompson v. White, 25 Colo. 226, 54 P. 718; Steinfeld v. Menager, 6 Ariz. 141, 53 P. 495. In Stanton v. Boschert it appeared that a requirement that an abstract of the attachment be filed with the recorder had been substituted for an older requirement of declaration of levy before a witness. The court held that no lien could be acquired unless such abstract was filed as required by the statute. In Bryant v. Duffy the same question arose, and counsel suggested that the case just cited referred only to priorities between different attaching creditors....

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