Cheeseman v. Fenton

• Court: Wyoming Supreme Court
• Writing for the Court: POTTER, CHIEF JUSTICE.
• Citation: Cheeseman v. Fenton, 13 Wyo. 436, 80 P. 823 (Wyo. 1905)
• Decision Date: 06 May 1905
• Parties: CHEESEMAN ET AL. v. FENTON, AS SHERIFF, ET AL

80 P. 823

13 Wyo. 436

CHEESEMAN ET AL. v. FENTON, AS SHERIFF, ET AL

Supreme Court of Wyoming

May 6, 1905

ERROR to the District Court, Big Horn County, HON. JOSEPH L STOTTS, Judge.

Replevin. The facts are stated in the opinion.

Reversed and remanded.

E. E Enterline and W. L. Simpson, for plaintiffs in error.

Civil actions before justices of the peace must be commenced by summons or by appearance and agreement of the parties without summons. (R. S. 1899, Sec. 4331.) In the absence of a summons or the submission by pleading, there is no action and there can be no judgment. (Lenosio v. Bartilino, 7 S Dak., 93; Lester v. Crairy, 1 Denio, 81; Tenny v. Filer, 8 Wend., 569; Fanning v. Trowbridge, 5 Hill, 428.) Where a writ of attachment is issued at the commencement of the action before a justice, it must contain the substance of a summons. (R. S. 1899, Sec. 4452.) No summons having been issued or action commenced, and the writ of attachment not containing the substance of a summons, all proceedings in the attachment suit were void. (White v. Johnson, 27 Ore. 282; Sherman v. Huot, 20 Mont. 555; Spreen v. Delsignore, 94 F. 71.)

The justice failed to note on his appearance docket the officer to whom the writ of attachment was delivered as required by Section 4330, and there is no evidence showing that the writ was delivered to any officer, nor that any return ever was made thereon by an officer. It is not sufficient for an officer to state in his return that he attached certain property, describing it; he must show what acts he did in making a complete and valid levy, and he must have taken possession of the property levied upon; and the return must show that the property was levied upon as the property of the defendant in the writ; otherwise the court has no jurisdiction to order a sale. (Anderson v. Plow Co., 101 Iowa 747; R. S. 1899, Secs. 4471, 4456; Tuells v. Torres, 113 Ga. 691; Repine v. McPherson, 2 Kan. 340; Clay v. Nielsen, 5 Rand, 596; Drake on Att., Sec. 205; Ireland v. Adair (N. Dak.), 94 N.W. 766; Haynes v. Small, 22 Me. 14.) Proceedings by attachment are special and the statutory provisions must be strictly followed or no rights will be acquired. (4 Cyc., 583-589; Rudolf v. Saunders (Cal.), 43 P. 619; Courtney v. Banks, 154 N.Y. 688; Ireland v. Adair, supra.) The failure of the justice's docket to show that the plaintiff's attorney appeared at four o'clock, without stating whether it was in the forenoon or afternoon, is fatal to the jurisdiction. (R. S., Secs. 4330, 4340, 4386; Mudge v. Yaples, 58 Mich. 307; Post v. Harper, 61 id., 434.)

Presumption in favor of the regularity in the proceedings of courts does not apply to courts of inferior or limited jurisdiction, but as to such courts the jurisdictional facts must fully appear from the record. (Bandement v. Trisler, 4 O. L. D., 447; State v. Barry, 12 Iowa 60; Goodrich v. Brown, 30 Iowa 291; McCurdy v. Bowman, 43 Ohio St. 78; Repine v. McPherson, supra; Hargis v. Morse, 7 Kan. 415; King v. Bates, 80 Mich. 367; Jones v. Hunt, 90 Wis. 199; Miller v. Plue (Neb.), 64 N.W. 232; Leonosis v. Bartilino, 7 S. Dak., 93.) The statutory bond was not given authorizing the issuance of execution by the justice where the judgment had been rendered by default, and, therefore, no rights of property could be proven under that writ. (R. S. 1899, Sec. 4484; 8 Ency. Law (1st Ed.), 328; Bush v. Visant, 40 Ark. 124.) The defendants cannot justify, either under the writ of attachment or the execution. Where an officer defends under a writ, it is incumbent upon him to introduce or prove the writ to show his right of possession and the value thereof. (Cobbey on Replevin, Sec. 1207; Williams v. Eikenbury, 22 Neb. 211.) And he must prove that the attachment was regularly issued. An officer claiming under a levy of execution can recover only the amount of his lien on proof of valid judgment and execution, and he must show that the proceedings were regular preceding the execution. (Wyatt v. Treeman, 4 Cal. 14; Miller v. Plue, 45 Neb. 701; Cobbey on Replevin, Secs. 806, 1013; Adams v. Hubbard, 30 Mich. 104.) The judgment of a justice rendered without jurisdiction is not even prima facie evidence of the debt. (Pelton v. Planter, 42 Am. Dec., 197.) The measure of damages where defendant justifies under a writ is the loss to the plaintiff in the writ if it does not exceed the value of the property. (Cobbey on Replevin, Sec. 958; Bank v. McDonald (Neb.), 89 N.W. 770.) A judgment of a justice of the peace rendered without jurisdiction is a nullity and subject to collateral attack. (Black on Judgments, Secs. 218, 220, 278, 282; 12 Ency. Law (1st Ed.), 148; Murphy v. Lyons, 19 Neb. 689.)

Even if it should be held that the plaintiff failed to establish title in himself, he showed a right of possession. But if it be conceded that he failed to show either title to the property or right of possession, the plaintiffs also failed in that regard, so that at most the judgment against plaintiff should not have been more than a judgment for costs.

E. E. Lonabaugh, Coker Rathbone and DeWitt C. Wenzell, for defendants in error.

The plaintiff failed to establish a shadow of title to the property in controversy and must, therefore, inevitably fail. This is a collateral attack upon the jurisdiction of the justice of the peace respecting the proceedings in the attachment suit under which the defendants claim a right to the property, and any contention of counsel for plaintiff in error not relating to the question of the jurisdiction of the justice is not worthy of consideration. The only two questions that deserve attention are, Did the justice of the peace acquire jurisdiction over the property attached, and (2), If he acquired jurisdiction, did he render a valid judgment? The court is familiar with the fact that the universal custom in justice courts in attachment cases is to issue a summons and writ of attachment combined, and undoubtedly one of such writs was used by the justice in the proceeding under which defendants claim. Unfortunately the writ of attachment was lost and its absence from the files forms the sole basis of appellants' contention. Noting the practice usually followed, we are satisfied that the writ contained the substance of a summons; but if not, it is wholly immaterial whether a summons issued or not. Where the defendant is a non-resident, and that fact is known to the justice at the time the attachment writ is issued, it is not necessary to issue a summons at all. The court may on application of the plaintiff proceed to obtain constructive service without first going through the useless formality of issuing a summons. (Bannister v. Carroll, 22 P. 1012; Dunlap v. McFarlan, 25 Kan. 488; Cohn v. Trowbridge, 6 Kan. 385; Wescott v. Archer, 12 Neb. 345.) The evidence was sufficient to show that the writ of attachment was returned and filed, both the justice and the attorney for the plaintiff testifying thereto; and it also appears that the property was levied upon by the deputy sheriff and was in his possession when the present action was commenced. Every officer is supposed to do his duty, and it cannot be presumed from the loss of the attachment writ that no levy was made or returned, nor that it was fatally defective, so as to make the judgment void.

While there may be some irregularities in the docket of the justice of the peace, there is nothing fatal to the validity of the judgment. If the docket shows that jurisdiction was acquired and a valid judgment rendered, the plaintiff herein cannot complain of irregularities in the proceedings which may appear upon the docket. (Black on Judgments, p. 298; Lancaster v. Wilson, 27 Gratt., 624; Hendrick v. Whitmore, 105 Mass. 23; Paul v. Smith, 82 Ky. 451; Harris v. Lester, 80 Ill. 307; Porter v. Gile, 47 Vt. 620; Archer v. Guill, 67 Ga. 195; 62 Am. Dec., 330; 77 Va. 704.) This rule against collateral attack or impeachment applies to every judgment, order, decree or other proceeding, of whatever species that is not absolutely void, whether it be regular or irregular, correct or erroneous, valid or voidable. It is applicable to a judgment in rem when the court has jurisdiction of the res. (Harrison v. Pender, 57 Am. Dec., 573.) The burden of proving want of jurisdiction was on the plaintiff, for when the writ of attachment was issued and the property levied upon, the justice acquired jurisdiction of the res and by subsequently obtaining service by publication the jurisdiction of the justice was perfected to the extent of rendering a judgment in rem for sale of the attached property. (Vaule v. Miller (Minn.), 67 N.W. 540; Pennoyer v. Neff, 95 U.S. 727.)

It would seem from the language of the constitution that courts of justices of the peace are to be regarded as courts of general jurisdiction. They are constitutional courts, not statutory. (Const., Art. 5, Sec. 22; 1 Black on Judgments, Sec. 286; Williams v. Ball, 51 Tex. 603.)

The plaintiff insists on a number of errors and defects in the proceedings in justice court, more clerical than jurisdictional, which might be sufficient to reverse the judgment on direct attack, but they cannot be considered in this proceeding. (Paper Co. v. Shyer, 58 L. R. A., 173; People v. Barry, 18 id., 339; Cycle Co. v. Thomas, 38 P. 307; Brash v. Smith, 75 P. 55; Root v. Davis, 23 L. R. A., 445; Black on Judgments, Secs. 246-250.) In the case at bar we insist that the record shows jurisdiction of the property taken in connection with the testimony that the cattle in question were attached by the officer having the writ of attachment in his hands for service; that service by publication was legally made, and a valid judgment in rem rendered.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. VAN ORSDEL, J., did not sit.

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