Courtney v. Carr

• Decision Date: 19 June 1858
• Citation: 6 Iowa 238
• Parties: COURTNEY v. CARR, APPELLANT. [a]
• Court: Iowa Supreme Court

6 Iowa 238

COURTNEY v. CARR, APPELLANT. ^[a]

Supreme Court of Iowa

June 19, 1858

Appeal from the Boone District Court.

June 19, 1858.

THIS action was brought to recover ten thousand dollars for the alleged fraud of the defendant, in the sale of certain lands with a steam mill situated thereon, in Boone county. Plaintiff having made affidavit that defendant was a non-resident of the State, two writs of attachment were issued -- one directed to the sheriff of Boone, and the other to the sheriff of Polk county. The writ directed to Polk county was returned served, by attaching certain lots in Des Moines, taken as the property of said defendant, on the twenty-second of April, 1857. The one directed to the sheriff of Boone was returned August 17, 1857, and is indorsed as follows:

"This writ came into my hands April 27, 1857. There is no property of the within named Horace Carr in my county. May 25, 1857.

C. W WILLIAMS, Sheriff of Boone County, Iowa."

"This writ came into my hands July 15, 1857.

S. J BURTON."

"I received this writ August 14th, 1857.

WM. H. HOLMES, Sheriff."

"I attached the [the return here gives a description of certain land], according to deed record of Boone county, Iowa.

WILLIAM HOLMES, Sheriff Boone County, Iowa."

The land described in the return by the sheriff of Boone county is the same as that sold by defendant to plaintiff, for which he executed a warranty deed, and upon which, to secure the balance of the purchase money, the plaintiff executed to defendant a mortgage. At the October term, 1857, defendant not having been served with notice of the pendency of the action, made a special appearance, and moved that the venue in said cause be changed to Polk county, which motion was overruled, the cause continued, and he now appeals.

ORDER REVERSED.

M. D. & W. H. McHenry, for the appellant.

Finch & Crocker and A. Y. Hull, for the appellee.

OPINION

WRIGHT, C. J.

Under the Code, the general rule is, that personal actions must be brought in the county wherein some of the defendants actually reside. If, however, none of them have a residence within this State, they may be sued in any county wherein either of them may be found. Section 1701. In this case, the defendant was a non-resident; he was not served, or found, in any county; and we must, therefore, refer to other provisions, if any there are, to determine where the suit should have been brought.

In cases of attachment of property, where the defendant is not served, or where the suit relates to real property, it may be brought in any county where the real property, or any portion of it, lies, or where any part of the personal []property may be found. Section 1703. As already stated, the defendant was not served, and the question now is whether the District Court of Boone county, under the circumstances disclosed, had jurisdiction of the case, or whether the venue should have been changed, on his motion, to Polk county. It is quite manifest that property of the defendant was attached by the sheriff of Polk county, and it is equally clear, that by virtue of that attachment, the District Court of that county, would have had jurisdiction to hear and determine the cause. If, however, any portion of defendant's real property lying in Boone county, was also attached, then the District Court of that county also had jurisdiction, and the motion to change the venue was properly overruled. And thus we see that the question is narrowed down to this: had the defendant such an interest in the land, set out in the sheriff's return, as could be attached in the method attempted, so as to authorize the court to take cognizance of the cause? In coming to this question, one or two positions, assumed by appellant, though not material to the disposition of the cause, may still properly receive attention. And first, it is assumed that after the first sheriff (Williams) made his return, it was irregular and incompent for the second sheriff to do anything with the writ. This might be true, if it appeared that the writ had been returned to the clerk, or into court. But this is not shown. On the contrary, it appears that the writ was not returned until after the second service by Holmes. The facts were doubtless these, that Williams made his return, and handed the writ to his successor, Holmes, who made the service in the manner stated. And it is not true that, because the defendant may have had no property within the county at the time the writ was placed in the hands of the sheriff, or at the time the first return was made, there was therefore no jurisdiction, if property was afterward found and attached. As well might it be assumed that the court had no jurisdiction because the defendant was not found by Williams, though Holmes []should afterward have served him personally. Before the actual return of the writ, we think it was the duty of the officer to serve it; and though the defendant may have had no property at one time, yet if he had subsequently, and before the return of the writ, acquired property, or if further search developed property belonging to him, it was proper to attach it, and thus the court would get jurisdiction.

It is also claimed that the return of Holmes does not state that the property attached was that of defendant, and that it is only where it affirmatively and clearly appears by the officer's return that the defendant had an interest in such property, that the jurisdiction attaches. In this case however, the bill of exceptions and the record shows that the property mentioned in the return, was the same as that sold and conveyed by defendant to plaintiff, and by plaintiff mortgaged to defendant to secure the unpaid purchase money. It being shown and conceded, therefore, that the defendant had by his...