Dye v. Crary

• Decision Date: 17 October 1904
• Citation: 78 P. 533,12 N.M. 460,1904 -NMSC- 036
• Parties: DYE et al. v. CRARY et al.
• Court: New Mexico Supreme Court

78 P. 533

12 N.M. 460, 1904 -NMSC- 036

DYE et al. v. CRARY et al.

Supreme Court of New Mexico

October 17, 1904

Syllabus by the Court.

1. There is no authority in this territory for issuing an alias writ of attachment, and property levied upon under such a writ gives the court no jurisdiction over such property.

Mills C.J., and McFie, J., dissenting.

Appeal from District Court, Socorro County; before Justice Daniel H McMillen.

Action by Benjamin H. Dye and others against H. C. Crary and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This is a suit in ejectment to recover the undivided five-sixths of a mining claim known as the "Compromise Mine," situate at White Oaks, Lincoln county, N.M. On March 3, 1898 defendant John Taliaferro commenced attachment proceedings in the district court against Benjamin H. Dye on two certain promissory notes. The affidavit for the writ of attachment alleged that Dye was at the time of the commencement of the suit a nonresident of the territory. The writ of attachment was issued and delivered to the sheriff, and returned by the sheriff on the 16th day of March, 1898, executed, as shown by the return, by levying upon and attaching Dye's right and interest in lots 2, 8, and 11, in section 25, township 6 south, of range 11 east. Notice of the pendency of the suit was given by publication in the White Oaks Eagle. The first publication thereof was on March 17, 1898, and the last on April 14, 1898, it having been published each week in said newspaper. It further appeared that on March 7, 1898, there had been levied an attachment in favor of Zeigle Bros., for the sum of $73.70, on the same property. On March 11, 1898 the plaintiff procured from the clerk of said court an alias writ of attachment, the record showing no new affidavit and no new bond given. The sheriff's return on said alias writ shows that he returned the said alias writ executed on May 27, 1898, upon the property in controversy. On the 19th of August, 1898, the plaintiff filed motion for a judgment and on the 31st of December, 1898, judgment was rendered by the court against Dye, sustaining the attachment and ordering the attached property sold. A writ of venditioni exponas was issued, reciting the attachment and the levy on the mine, but saying nothing about the levy upon the lots. The mine was sold under said writ in February, 1899, to Jones Taliaferro. On December 4, 1900, Dye conveyed an undivided one-half of his undivided interest in said mining claim to Wm. B. Childers. This cause came on for trial before a jury. After the evidence was introduced, the court directed a verdict in favor of the defendants, to which plaintiffs excepted. Plaintiffs filed motion for a new trial, which was overruled, and exceptions preserved. Judgment was rendered upon the verdict, appeal prayed for and allowed.

W. B. Childers, for appellants.

H. B. Fergusson, for appellees.

BAKER, J. (after stating the facts).

If the court acquired jurisdiction of the subject-matter in this case, all the irregularities complained of must be brushed aside. Voorhees v. U.S. Bank, 35 U.S. 447, 9 L.Ed. 490; Cooper v. Reynolds, 77 U.S. 308, 19 L.Ed. 931. If the alias writ of attachment was lawfully issued, the court in Taliaferro v. Dye had jurisdiction of the rem and power to order the sale of the property attached. Was the alias writ of attachment issued by authority of law? The answer to this question must settle the controversy in this case. The Legislature has undertaken to give us an attachment procedure. Comp. Laws 1897, §§ 2686 to 2736, inclusive. If alias writs of attachment are not authorized by our statutes, then they cannot issue. Section 2686 provides that when a claim is $100 or over you may sue in the district court by attachment by setting up the statutory grounds therefor. Section 2690 of the Compiled Laws provides that the bond (approved by the clerk), the affidavit, and petition shall be filed before the attachment shall be issued. Section 2696 provides that original writs of attachment shall be directed to the sheriff. Section 2697 provides that "original writs of attachment shall be issued and returned in like manner as ordinary writs of citations." Why the use in sections 2690, 2696, and 2697 of the words "original attachments"? Did the Legislature mean thereby to exclude alias writs of attachment? Section 2715, Comp. Laws 1897, provides the form of the bond as well as the conditions thereof, as follows: "Know all men by these presents, that we (A. B. as principal, or C. D., agent for A. B., principal, as the case may be) and N.M. and M. M., his sureties, are held and firmly bound unto the territory of New Mexico in the sum of ___ dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals and dated this ___ day of ___ A. D. ___. The condition of the above obligation is such that whereas the above named A. B. has this day sued out an attachment before J. J. Clerk of the District Court, against E. F. for the sum of ___ dollars, returnable to the next term of the district court for the county of ___." The original writ of attachment would be returnable at the next term of the court, while the alias writ of attachment might not be issued until long after such term. Could it be said that the bondsmen would be holden for damages for the wrongful suing out of the alias writ of attachment when the bond provides that "the conditions of the above obligation are such that whereas the above named A. B. has this day sued out an attachment against E. F. for ___ dollars returnable at the ___ term of the district court for the county of ___"? We think not. The ground for the attachment might exist when the bond was given and the original writ issued, but might not exist at the time of the issuance of an alias writ. For instance, the first ground of attachment provided for in the statute--nonresidence--existing at the time of the issuance of the original writ might not exist at the time of the issuance of the alias writ, for the defendant, long before the issuance of the alias writ, might have become a resident of the territory, and, if an alias writ of attachment can be issued at all, it can as well be issued one year after the issuing of the original writ as one day or one month thereafter. The conditions of the parties might change very materially, and the bondsmen might not be willing under such changed conditions to stand sponsor for the damage that might result from the issuance of an alias or any other writ of attachment under the then existing circumstances. Yet, if an alias writ may issue, it must carry with it the obligations of the bondsmen; otherwise you have a writ of attachment without bond, which certainly cannot be contended. Sections 2721 and 2722 of the Compiled Laws provides for ancillary writs of attachment and the mode of procedure, but they shed no light on the subject of an alias writ of attachment. Attachment, being in derogation of the common law, must comply with the statute. 4 Cyc. Procedure, p. 400, par. 4, and citations; 3 A. & E. Ency. of Law (2d Ed.) 184; Drake on Attachment (5th Ed.) § 4; Waples on Attachment, p. 24 § 7; 1 Wade on Attachment, § 2; 1 Shinn on Attachment, § 8; 3 Blackstone's Com. c. 19. The common law is the rule of practice and decisions in this territory. Comp. Laws 1897, § 2871. Attachment being in derogation of the common law, we must look to our statutes. If our statutes do not authorize the issuance of an alias writ of attachment, then one cannot be issued. Certainly, our statutes do not provide for an alias writ of attachment in express terms; nor, do we think, by implication.

The position of the appellees that section 2727, Comp. Laws gives the court jurisdiction of the property of the defendant from and after the issuance of the writ is tenable only so far as it relates to the property actually levied upon. The court acquires its jurisdiction from a legal writ, a levy thereof, and a return thereon by the proper officer. In Cooper v. Reynolds, 77 U.S., at page 319, 19 L.Ed. 931, the court says: "Now, in this class of cases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this, the court can proceed no further; with it, the court can proceed to subject that property to the demand of the plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into court the power of the court over the res is established." This case is much relied upon by appellees. They also cite with much reliance the case of Voorhees v. Bank, 35 U.S., in which case, at page 440, 9 L.Ed. 490, the court says: "On comparing the record of the proceedings on the attachment with the provisions of the act of 1805 (Chase's Ohio Laws, p. 462, etc.), the acts of the court in all of the course of the cause appeared to be in conformity therewith, except in the following particulars, on which the objections to the validity of the sale are founded." The five objections, in short, were (1) that the affidavit was not in proper form; (2) that there was not sufficient notice given for sale; (3) that the defendants were not three times called, as provided by law; (4) that the sale was made before the expiration of the time of notice; and (5) that the return of the auditor showed the deed executed to a...