Bray v. McClury

• Decision Date: 31 January 1874
• Citation: 55 Mo. 128
• Parties: NATHAN BRAY, et al., Respondents, v. ROBERT MCCLURY, et al., Appellants.
• Court: Missouri Supreme Court

55 Mo. 128

NATHAN BRAY, et al., Respondents,

v.ROBERT MCCLURY, et al., Appellants.

Supreme Court of Missouri.

January Term, 1874.

PER CURIAM, ADAMS, J.

Appeal from Greene Circuit Court.

Crawford & Cravens, and Shafer & Duckwait, for Appellants.

I. The affidavit to the truth of the facts in the petition, and the additional affidavit of non-residence of the defendants, taken together, constitute almost a literal compliance with the statute. (Drake Att., Ch. 5, § 95.) The most important point in the affidavit is the ground of the attachment, which is here clearly stated. (Drake Att., Ch. 5, §§ 97, 98; Ibid, §§ 106, 113; Vankirk vs. Wilds, 11 Barb., 524; Curtis vs. Settle, 7 Mo., 452; Graham vs. Ruff, 8 Ala., 172; Wallis vs. Wallace, 6 How., [Miss.] 254; 7 Humph., 210; 1 Sm. & M., 503.)

II. The affidavit is not an element of jurisdiction, but merely a suggestion upon which the writ issues, and the entire absence of it would not render the proceedings void in a collateral proceeding. (Cooper vs. Reynolds, 10 Wallace, 308; Voorhees vs. Bank United States, 10 Pet., 449; Massey vs. Scott, 49 Mo., 278; Ludlow vs. Ramsey, 11 Wall. 587.)

The affidavit is no more a jurisdictional fact than the filing of a bond is; both alike in the order of the statute precede the issue of the writ. A failure in either particular, it is conceded, would be grossly irregular and erroneous, and would be good ground of reversal either on appeal or writ of error; but can be taken advantage of only by the defendant himself in one of the above ways, or on motion to quash before judgment. (Drake Att., Ch. 6, §§ 115, 143-144; Camberford vs. Hall, 3 McCord, 345; Wigfall vs. Byne, 1 Richardson, [S. C.] 412; VanArsdale vs. Krum, 9 Mo., 397; Beecher vs. James, 2 Scam., 462.)

III. The jurisdiction of the court attached by reason of the levy of the writ, and no subsequent error or irregularity in the proceedings either in the form of the judgment or the execution, could effect its validity in a collateral proceeding. (Hardin vs. Lee, 51 Mo., 241; Massey vs. Scott, 49 Mo., 278; Clark vs. Holliday, 9 Mo., 702; Cooper vs. Reynolds, 10 Wall., 308; Jackson vs. McCrea, 8 Johns., 362; Kempe's Lessee vs. Kennedy, 5 Cranch., 173; Fithian vs. Monks, 43 Mo., 502; Landes vs. Perkins, 12 Mo., 239; Reed vs. Austin, 9 Mo., 713; Draper vs. Bryson, 17 Mo., 71; McNair vs. Biddle, 8 Mo., 264; Coleman vs. McAnulty, 16 Mo., 176.)

John S. Phelps, for Respondents.

I. No writ of attachment can be lawfully issued by the clerk, unless an affidavit shall be made by the plaintiff or some one for him, and filed with the clerk, alleging some of the causes for which an attachment may issue, and that the plaintiff has a just demand against the defendant, stating the amount which the affiant believes the plaintiff ought to recover after allowing all just credits and set offs. Such affidavit substantially complying with the law is a pre-requisite to issuing a writ of attachment, and without which the attachment and proceedings under it are void. (Drake Att., §§ 83, 84, 437; Cooper vs. Reynolds, 10 Wall., 319; Hardin vs. Lee, 51 Mo. 241; McCulloch vs. Foster, 4 Yerg., 162; Conrad vs. McGee, 9 Yerg., 428; Maples vs. Tunis, 11 Humph., 108; Staples vs. Fairchild, 3 Comst. 41.) Affidavit must positively state indebtedness and not inferientially. (Quades vs. Robinson, 1 Chandler, 29; Clark vs. Roberts, 1 Ill., 285; Pool vs. Webster, 3 Met., [Ky] 278; Whitney vs. Brunette, 15 Wis., 61; Talbot vs. Worth, 19 Wis., 174; Greenvault vs. Mechanic's Bank, 2 Dougl., 498.)

II. But the record (Merchants' Bank vs. Ferguson & Stephens,) shows the proceeding was not by attachment, but a proceeding to obtain a general judgment under Act of 1855 by publication. Affiant states in his affidavit, “the matters and statements contained in the foregoing petition he believes to be true,” and that defendants “are non-residents of the State of Missouri, to the best of his knowledge and belief.”

III. An affidavit for an attachment must positively state, 1st. That plaintiff has a just demand against defendant. 2nd. The amount he believes plaintiff ought to recover after allowing all just credits and set-offs. 3rd. That he has good reason to believe, and does believe, in the existence of some of the causes for which an attachment may issue.

IV. Plaintiff took his general execution and not a special execution, and the lands were sold on a general execution.

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 county of Greene. Both parties trace their title to John N. Ferguson as the original source, who was formerly seized of the 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, verified by affidavit, as the practice act required at that time.

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. Upon 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 gener al 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 existence of one or more of the causes, which according to the provisions of the statute would entitle the plaintiff to sue by attachment. (R. C., 1855, p, 240, §§ 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 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...