Drake v. Hale
| Decision Date | 31 July 1866 |
| Citation | 38 Mo. 346 |
| Parties | E. S. DRAKE, ADM'R OF WM. DUROSSETT, DECEASED, Defendant in Error, v. S. F. HALE, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Benton Circuit Court.
J. F. Phillips, for plaintiff in error.
I. The sheriff's return on the writ of attachment was insufficient, and did not authorize the rendering of the judgment against Hale--R. C. 1855, p. 245, § 22; Cabeen v. Douglas, 1 Mo., 336; Walsh v. Agnew, 12 Mo., 521, 527; Thatcher v. Powell, 6 Wheat. 119, 127; Lackey v. Seibert, 23 Mo. 85, 94; Harris v. Hardman et al., 14 How. (U. S.) 334-45.
II. The order of publication was not sufficient to authorize a judgment against the property of defendant Hale. It did not show a proceeding in rem, and was neither a literal nor substantial compliance with the requirements of the statute--R. C. 1855, p. 246, § 23; Hallet v. Righter et al., 13 How. (N. Y.) Prac. 43; Thatcher v. Powell, 6 Wheat. 119, 127; Morton v. Reed, 6 Mo. 64, 74; Harris v. Hardman et al., 14 How. (U. S.) 334, 341; Denning v. Corwin et al., 11 Wend. 647; Voorhees v. Bk. U. S., 10 Pet. 476; Corliss v. Corliss, 8 Vt. 389.
a. The notice by publication is an entire thing, one and indivisible; it cannot be halved, or in less degree sub-divided--Withers v. Rodgers, 24 Mo., 340, 343.
b. The order of publication only shows a proceeding in personam, and was no such notice as required the defendant to appear and defend, as a judgment rendered on such notice would be nugatory--Smith v. McCutchin, Garn., &c., (not reported); Caldwell v. Lockridge, 9 Mo. 358; Smith v. Ross et al., 7 Mo. 463; Sanders v. Rains et al., 10 Mo. 770; Atkinson v. Amick, 25 Mo. 404.
III. The record in the case does not show that proof of publication was ever made. This fact should appear affirmatively of record--Smith v. Fowler, 12 Wend. 9; Harris v. Hardman et al., 14 How. 341, 342; 11 Wend. 648, 653; Pelton v. Platner, 13 Ohio, 209, 219; Smith v. Ross et al., 7 Mo. 465, 466; Miama Ex. Co. v. Brown et al., 6 Ohio, 236 ; Reynolds v. Stanberry et al., 20 Ohio, 359.
IV. The motion made below was proper, and in time--13 How. (N. Y.) Prac. 43; Posey v. Buckner, 3 Mo. 604; Blanton v. Jamison, 3 Mo. 53; 12 Mo. 147; 34 Mo. 318; 33 Mo. 612.
John S. Phelps, for defendant in error.
I. The law does not require the sheriff, in his return, to state there are no tenants of the real estate attached--R. C. 1855, p. 244, 245. The return of the sheriff in this case is equivalent to a statement there are no tenants. His return cannot be controverted in this case--Hallowell et al. v. Page, 24 Mo. 590; Pope v. Page et al., 24 Mo. 595.
II. The order of publication in this case is a substantial compliance with the law. At the date of the order of publication the property of the defendant had not been attached. It is alleged the order of publication is defective in this, that it does not state his property had been attached. In all other particulars, the order of publication complies with the requirements of the statute--R. C. 1855, p. 246.
This was a suit by attachment. Annexed to the petition was an affidavit of non-residence of the defendant; and the attachment appears to have been issued on the 2d day of July, 1865. On the 22d day of July following, an order of publication was issued by the clerk, in vacation, reciting as the ground of the attachment, that the defendant had so absented himself from his usual place of abode in this State that the ordinary process of law could not be served upon him; and it merely notified the defendant of the commencement of an action against him for damgaes in the destruction of property, and that if he did not appear at the next term, judgment would be rendered against him, and his property sold to satisfy the same. It did not contain the notification required by the statute, “that his property had been attached,” nor give any intimation of that fact--R. C. 1855, p. 246, § 23. Neither does the record show that any affidavit of the fact that the defendant had absented himself from this State, so that the ordinary process of law could not be served upon him, had ever been filed.
In respect of the notification, the attachment act differs from the general practice act. It supposes that there may be no personal or other service on the defendant himself, and that the proceeding may be wholly in rem against the property attached. In such case, this is the very thing of which he should have notice, that he may appear and protect his property from sale. But it is enough that the statute expressly requires this fact to...
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