Cooper v. Reynolds

• Decision Date: 01 December 1870
• Parties: COOPER v. REYNOLDS
• Court: U.S. Supreme Court

77 U.S. 308

19 L.Ed. 931

10 Wall. 308

COOPER v. REYNOLDS.

December Term, 1870

ERROR to the Circuit Court for the Eastern District of Tennessee, the case being thus:

The code of Tennessee of 1857-8, under its chapter on ATTACHMENTS, thus provides:

§ 3455. Any person having a debt or demand due at the commencement of an action; or a plaintiff after action for any cause has been brought, and either before or after judgment, may sue out an attachment at law or in equity against the property of a debtor or defendant in the following cases:

2. Where he is about to remove or has removed himself from the State.

5. Where he absconds or is absconding or concealing himself or property.

§ 3462. Attachments sued out in aid of a suit already brought shall be made returnable to the court or justice before whom the suit is pending.

§ 3469. In order to obtain an attachment the plaintiff, his agent or attorney, shall make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim, and also that one or more of the causes enumerated in section 3455 exists.

§ 3470. It is no objection to the attachment that the bill, affidavit, or attachment states, in the alternative or otherwise more than one of the causes for which an attachment may be sued out.

§ 3471. The officer to whom application is made shall, before granting the attachment, require the plaintiff . . . to execute a bond in double the amount claimed to be due, . . . payable to the defendant and conditioned that the plaintiff will prosecute the attachment with effect, or in case of failure pay, &c.

§ 3472. The affidavit and bond shall be filed by the officer taking them in the court to which the attachment is returnable, and shall constitute a part of the record in the case.

Subsequent sections of the chapter provide for publication for a fixed time in a newspaper published in the county where the suit is brought of a memorandum or notice of the attachment, and declare:

§ 3522. This memorandum or notice shall contain the names of the parties, the style of the court to which the attachment is made returnable, the cause alleged for suing it out, and the time and place at which the defendant is required to appear and defend the attachment suit.

§ 3524. The attachment and publication are in lieu of personal service upon the defendant, and the plaintiff may proceed upon the return of the attachment duly levied, as if the suit had been commenced by summons.

With these enactments of the code in force, W. G. Brownlow, on the 26th September, 1863, sued out a writ of summons in trespass, in the County Court of Knox County, Tennessee, against Reynolds and others, for false imprisonment, for ejecting him from the State, &c. damages $25,000. To this writ the sheriff returned that 'he had made search and that none of the defendants were to be found in his county.' On the same day that he applied for the summons, and before the same person, one M. L. Hall, who, as clerk, had issued the summons in the trespass suit, Brownlow filed an affidavit, for an attachment against the property of Reynolds and the others. The affidavit, after giving the names of the parties to the summons, ran thus:- 'The plaintiff makes oath that he has a good cause of action against the defendants herein named in which he will be entitled to recover a very large sum. He further swears that all of defendants have fled from this State OR that they so abscond or conceal themselves that the ordinary process of law cannot reach them; that he has this day instituted an action of trespass against them claiming $25,000. Plaintiff therefore prays for an ancillary attachment against their property in aid of this his suit.'

An attachment bond being given in double the amount ($50,000) the attachment issued; the bond and attachment being, like the affidavit and summons had been, both dated September 26th. The attachment recited the above-given affidavit substantially as made, and directed the sheriff to attach so much of the property of Reynolds and the others as should be sufficient to satisfy the said amount of $25,000, and such estate so to secure that the same might be subject to further proceedings thereon at a court to be held on a day subsequent and specified. The sheriff returned to this last writ that he had attached all the right and title of Reynolds in and to one hundred and sixty acres of land in Knox County. Publication was ordered by the court to be made in the Knoxville Whig (a paper of the county), notifying to the defendants to appear and plead, answer or demur, or that the suit would be taken as confessed and proceeded in ex parte as to them. The record did not, however, set forth the notice which was published, if any was; though it did set forth the order for publication, which was entitled, 'Order of publication, and the publication as made in the Knoxville Whig;' making it appear, perhaps, that the omission to set forth the notice was a clerical error.

The record of Brownlow's suit went on to say that the defendant, Reynolds, and the others being solemnly called to come into court, came not, but made default, and it appearing—the record proceeded—that the attachment had been duly levied on the defendant's property, and that publication had been made according to law, it was ordered that the plaintiff should recover his damages. These were assessed at $25,000, and for this sum execution was ordered to issue, and that the sheriff should sell the one hundred and sixty acres of land attached. The land was accordingly sold under a venditioni exponas, and a deed made by the sheriff to one Cooper, by order of the purchaser. Cooper was put into possession by a writ of haberi facias, issued from the same court in the same proceeding. Being thus in possession, Reynolds, the original owner, brought ejectment in the court below against him. Cooper asserted title under the judicial proceedings above described. It was admitted that Reynolds had title to the land unless it had been divested by those proceedings. The record of the proceedings having been obtained from the Knox County Court, and put in evidence below, the defendant asked the court to instruct the jury:

'That the Court of Knox County had jurisdiction of attachment cases and actions of trespass, and that as it is declared in the judgment in the suit of Brownlow v. Reynolds et al. that the attachment was duly levied on the property of the defendants, and that publication had been made according to law, this adjudication was conclusive upon parties and privies, until the same should be reversed by a court of error; that the sheriff's deed to the defendant made, by virtue of the sale under and by virtue of the judgment of the Court of Knox County, communicated a good title to the premises in controversy to the defendant as against the plaintiff, and that the regularity of the proceedings in the said suit of Brownlow v. Reynolds et al. could not be collaterally inquired into in this cause.'

This instruction the court refused to give, but charged the jury:

'That the summons issued in the case of Brownlow v. Reynolds et al. was not served upon the plaintiff in this suit, and that the question was whether the attachment would bring him into court; that the affidavit upon which the attachment was issued, was not made in conformity to the attachment laws of Tennessee; that it did not show the court in which suit was brought, or state specifically the cause of action or nature thereof, as required under the decisions of the Supreme Court of Tennessee, so as to connect itself with the summons in the action of trespass; that it did not appear that any publication was in fact made, and that the Court of Knox County acquired no jurisdiction of the cause; that the attachment and proceedings thereon were not sufficient to bring Reynolds before the court; that there was no authority for rendering the judgment, and that the levy of the attachment, the judgment of the court, the sale by the sheriff, and the sheriff's deed, were null and void, and conveyed no title.'

Verdict and judgment having gone accordingly for the plaintiff, the question now here, on error by the other side, was whether this instruction was correct.

Mr. Horace Maynard, with whom was Mr. T. A. R. Nelson, for the plaintiff in error:

1. The affidavit is in substantial conformity to the requirements of the code (section 3469 and section 3455, subsections 2, 5). Its words 'have fled from the State,' are equivalent to the words 'removed from the State,' in subsection 2. If not, its words 'they so abscond or conceal themselves that the ordinary process of law cannot reach them,' are equivalent to the words in sub-section 5, 'where he absconds, or is absconding or concealing himself or property.' This construction is sustained by section 3470, which provides that 'it is no objection to the attachment that the bill, affidavit, or attachment states in the alternative, or otherwise, more than one of the causes for which an attachment may be sued out.'

The instruction, 'that the affidavit does not show the court in which suit was brought, or state specifically the cause of action or nature thereof, as required under the decisions of the Supreme Court of the State, so as to connect itself with the summons in the action of trespass mentioned,' was erroneous, because it is provided in section 3472, in regard to the affidavits and bond mentioned in section 3469, that 'the affidavit and bond shall be filed by the officer taking them in the court to which the attachment is returnable, and shall constitute part of the record in the cause.' Now in this case the affidavit was made before M. L. Hall, clerk of the court, who issued the summons and the ancillary attachment; and the affidavit, bond, and attachment, being thus parts of the record, should be construed together and in connection with the summons, which is part of the same record. The summons,...