Duxbury v. Dahle

• Decision Date: 20 December 1899
• Docket Number: Nos. 11,810 - (157).,s. 11,810 - (157).
• Parties: W. R. DUXBURY v. O. K. DAHLE.
• Court: Minnesota Supreme Court

78 Minn. 427

W. R. DUXBURY v. O. K. DAHLE.

Nos. 11,810 - (157).

Supreme Court of Minnesota.

December 20, 1899.

Action of ejectment in the district court for Houston county. The case was tried before Kingsley, J., who found in favor of plaintiff;

and from a judgment entered pursuant to the findings, defendant appealed. Reversed.

James O'Brien, for appellant.

Duxbury & Duxbury, for respondent.

BROWN, J.

This is an action in ejectment to recover the possession of 80 acres of land situated in Houston county. One John B. Koetting was the former owner of the land, and both parties claimed title through him, — the plaintiff, under and pursuant to certain attachment proceedings; and the defendant, through various mesne conveyances. The plaintiff's asserted title, if valid, is superior to defendant's. So the question with respect to the validity of the attachment proceedings under which plaintiff so claims title is the only one which requires consideration. As we find such proceedings fatally defective, no other question need be considered. The plaintiff had judgment in the district court, and defendant appealed.

Said Koetting was the owner of said land on February 2, 1894. On that day one John Barth, receiver, commenced an action against said Koetting in the district court of Houston county to recover upon a judgment theretofore rendered in his favor and against Koetting in the circuit court of Milwaukee county, Wisconsin, for the sum of $111,449.74. Koetting was not a resident of this state, and, to obtain jurisdiction in said action so commenced in said district court of Houston county, said Barth caused to be filed with the clerk of said district court an affidavit for a writ of attachment against his property, setting forth therein such nonresidence of Koetting. Upon such affidavit, together with a proper bond, a writ of attachment was allowed by the court commissioner and issued by the clerk, under and pursuant to which the land in controversy was levied upon and attached. The summons in the action was served by publication, and on May 12, 1894, judgment was rendered and entered on default in favor of said Barth and against said Koetting for the sum of $115,669.16. Execution was issued upon this judgment, the land levied upon and sold, and at the sale struck off to one Samuel Kuster for $800.

The plaintiff has succeeded to Kuster's title.

The complaint in this action sets out plaintiff's title in extenso. The commencement of the action in the district court of Houston county, the affidavit for attachment, bond, entry of judgment, issue of execution, and sale thereunder, and all other facts leading to plaintiff's title, are fully set out. The answer puts in issue about all the allegations of the complaint, and calls in question the validity of the attachment proceedings.

It is contended by defendant that the attachment proceedings were null and void for the reason that the affidavit for the writ was defective and insufficient, and conferred no jurisdiction on the court to issue or allow the writ. The affidavit is set out in the complaint, and the portion objected to is as follows:

"That a cause of action exists against the defendant and in favor of said plaintiff therein, and the amount of said plaintiff's claim therein is ____ sum of one hundred and eleven thousand four hundred and forty-nine and 74/100 dollars, and the ground thereof is as follows: that is to say, that the defendant is not a resident of this state."

There is no other or further statement in the affidavit with reference to the ground of plaintiff's cause of action or claim. G. S. 1894, § 5289, provides, among other things, that a writ of attachment

"Shall be allowed whenever the plaintiff, his agent or attorney, shall make affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the ground thereof."

It is issued upon the order of the judge of the district court or court commissioner, in whom no discretion is vested. No investigation is to be made as to the truth of the facts set out in the affidavit. If an affidavit in the form of the statute be filed, the writ must issue. The proceeding by attachment against the property of nonresidents is purely statutory. Jurisdiction in such cases extends to the property attached, and no further. It is in derogation of the common law, and the statutory requirements must be substantially, if not strictly, pursued and complied with. If there be a fatal defect in any jurisdictional prerequisite, the proceedings are invalid, even though a writ valid on its face may have been issued, and a levy made thereunder. The general rule is that the affidavit is the foundation of the writ; and if none be filed, or one be filed which wholly fails to set out some fact required by law to be stated therein, there is no jurisdiction, and the proceedings are null and void.

There is no question but that the affidavit set out in the complaint, and which was the basis of the writ in question, is defective, in not stating the ground of plaintiff's claim. There is no attempt at a compliance with the statutes in that respect. It is the understanding of the bar of this state, so far as our knowledge extends, that a defect of this character is fatal to the...