First Nat. Bank v. Griffith

• Decision Date: 17 January 1916
• Docket Number: No. 11104.,11104.
• Citation: 182 S.W. 805
• Parties: FIRST NAT. BANK OF APPLETON CITY v. GRIFFITH et al.
• Court: Missouri Court of Appeals

182 S.W. 805

FIRST NAT. BANK OF APPLETON CITY v. GRIFFITH et al.

No. 11104.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

Rehearing Denied February 7, 1916.

Error to Circuit Court, Bates County; C. A. Calvird, Judge.

Action by the First National Bank of Appleton City against E. P. Griffith, in which Catherine Griffith interpleaded. There was a judgment for plaintiff, and defendant and interpleader bring error. Affirmed.

Clarence I. Spellman, of Kansas City, for plaintiffs in error. Parks & Son, of Clinton, and Silvers & Silvers, of Butler, for defendant in error.

TRIMBLE, J.

This was a suit brought by the First National Bank of Appleton City against E. P. Griffith on two promissory notes aggregating about $6,000. A writ of attachment was issued in aid thereof and levied upon certain real estate and personal property belonging to Griffith; and one J. M. Burns was summoned as garnishee. Griffith appeared and filed a plea in abatement denying the alleged grounds of the attachment, and also filed answer to the merits. The bank filed a reply to the answer on the merits. Upon a trial of the issue raised by the plea in abatement the bank obtained a verdict and judgment sustaining the attachment. Afterwards the suit was tried on the merits, and the bank obtained judgment on both notes. No motion for new trial was made nor was any bill of exceptions filed. The defendant, Griffith, and his wife, as interpleader, thereupon sued out a writ of error in this court, and brought the case here on the record proper, and on a stipulation entered into between the parties in this court. The sole contention of the parties who sued out the writ of error is that the trial court obtained no jurisdiction to proceed in the case, and that, for that reason, all steps taken therein were coram non judice and void. This view is bottomed upon the theory that the writ of attachment was issued upon an affidavit amendatory of a former affidavit which was an absolute nullity, and therefore could not be amended.

It may be conceded at once that, if the plaintiffs in error are right in their premise, then their conclusion is right; for a thing which is nothing cannot be amended so as to be something. If the writ of attachment levied upon the property and by which it was seized was issued upon an affidavit which sought to amend something which had no existence, then the writ itself was a nullity, and the court obtained no jurisdiction over the res, the property attached. Jurisdiction over the subject-matter of an attachment is obtained by the levy thereon of a writ properly issued. Hardin v. Lee, 51 Mo. 241. A valid writ cannot be issued unless the statutory affidavit has been filed. Such an affidavit is an indispensable prerequisite to the issuance of a valid attachment writ. Norman v. Pennsylvania Fire Ins. Co., 237 Mo. 576, 141 S. W. 618. If the affidavit filed is indeed an affidavit, but is merely insufficient in some one or more features thereof, the statute provides that it may be amended. Section 2341, R. S. Mo. 1909; Avery v. Good, 114 Mo. 290, 21 S. W. 815; Maurer v. Phillips, 182 Mo. 440, 168 S. W. 669. But, where a writ of attachment is issued and levied without an affidavit, or (which is the same thing) upon a paper purporting to be an affidavit, but which in fact is not, the writ is void, and cannot be galvanized into life by the filing of an affidavit amending an affidavit which never existed. And the levying of such a writ cannot confer jurisdiction over the subject-matter of the attachment — i. e., the property seized. Third National Bank v. Garton, 40 Mo. App. 113; Hargardine v. Van Horn, 72 Mo. 370. The principle that the failure to comply with the statutory prerequisites is fatal to the jurisdiction is also announced in Purcell v. Merrick, 172 Mo. App. 412, 158 S. W. 478. Nor does the appearance of the attachment defendant confer jurisdiction over the property seized. Third National Bank v. Garton, supra. Such appearance would give jurisdiction over the person of the defendant, but this would have no effect in giving validity to the attachment part of the suit. We therefore readily concede that, if plaintiffs in error are right in their premise that the attachment writ by which the property was seized was issued upon an affidavit amendatory of a paper purporting to be an affidavit, but which, neither in fact nor in law, was an affidavit, then all proceedings in the attachment feature of the suit were coram non judice and void. But are the plaintiffs in error right in their premise? This requires here a statement of the facts.

On May 23, 1911, the bank filed its petition against Griffith in the circuit court of Bates county asking for judgment on the two promissory notes aforesaid. On the same day plaintiff filed a bond in attachment, and also filed a paper which was in the form of an affidavit, but neither the affidavit nor the jurat thereto was signed. Now, although on the same day a writ of attachment was issued, yet, so far as the record discloses, nothing was done with this writ of attachment. No return was made on it by the sheriff, and this fact is affirmatively shown by the record.

On May 27, 1911, within four days after the filing of the petition, defendant, Griffith, appeared and filed a motion to dismiss the attachment because no affidavit had been filed. This motion was never acted upon in any way. Three days later, to wit, May 30, 1911, the bank filed in court an affidavit for attachment in proper form, duly signed and sworn to by its cashier, who swore that he was such officer, and that he made the affidavit for and on behalf of the bank. Neither the affidavit nor the order in reference to its filing said anything about a former affidavit, nor that it was made or filed as an amendment. The record entry of the court is as follows:

"Now on this day comes plaintiff herein by attorney and files his affidavit in attachment. Whereupon it is ordered by the court that writ of attachment issue to Bates county, Mo., against the defendant."

The writ was thereupon issued. In addition to its direction to attach the defendant, Griffith, by his lands and tenements, goods, chattels, moneys, credits, evidences of debt, and effects, or so much thereof as would be sufficient to secure the amount of plaintiff's demand, it directed the sheriff to summon E. P. Griffith to appear and answer at the next term to be begun and held on the first Monday of October following, and also to summon every person as garnishee in whose hands any evidences of debt were found. This writ was duly levied upon certain personal property, and also upon two tracts of real estate in Bates county, all as the property of said E. P. Griffith, as shown by the return of the sheriff thereon. The return further recites that on the 28th of July, 1911, the sheriff summoned J. M. Burns as garnishee, attaching in his hands all surplus money arising from the foreclosure of a deed of trust on the first-described tract of real estate attached. This first-described tract consisted of 40 acres, and was owned by E. P. Griffith, but during the lifetime of his first wife he had incumbered it with a deed of trust to Burns as trustee for one Baskerville to secure a note for $1,000. The first wife died, and Griffith married again. The deed of trust was foreclosed by Burns, as trustee, on July 28, 1911, and the land brought $1,450 cash. It was this surplus above the note that Burns held and for which he was garnisheed. There can be no question that Burns was duly summoned as garnishee, and that he did not volunteer as a stranger as claimed by the plaintiffs in error; for, in addition to the recitals in the writ and return thereon, the stipulation filed by the parties in this court recites that:

"On the same day, to wit, July 28, 1911, the plaintiff bank caused a summons in garnishment in said cause to be issued and duly served upon the said J. M. Burns, trustee, who in due time entered his appearance, and filed his answer as garnishee."

It seems that shortly before the bringing of the suit herein by the bank Griffith and his second wife, Catherine Griffith, made a deed without consideration to one James T. Mahoney, purporting to convey said 40-acre tract subject to said deed of trust. Thereafter Mahoney, also without consideration, made a quitclaim deed to it to Catherine Griffith. Consequently Burns, in his answer as garnishee filed at the October term, 1911, set up the foreclosure of the deed of trust and that he held a surplus of $304.11 above the note and costs of foreclosure, and that this surplus was claimed by Mahoney, by Catherine Griffith, by the defendant, E. P. Griffith, and by the plaintiff bank. The answer then prayed that all of said parties be ordered to appear and interplead or present their respective claims to said fund. Pursuant to this prayer in Burns' answer, the court made an order directing him to pay the money into court, which he did, and he was thereupon discharged. The court also made an order and caused summons to be issued to Catherine Griffith, James T. Mahoney, and E. P. Griffith ordering them to come into court and interplead for said $304.11, the surplus proceeds of the foreclosure. A copy of this order and summons was duly served upon each of them. Mahoney filed a disclaimer. Catherine Griffith and E. P. Griffith refused to interplead, and made default.

At the October term, 1911, E. P. Griffith appeared in the original case and filed a plea in abatement denying the facts alleged as grounds for attachment. At the February term, 1912, the plea in abatement was tried, resulting in a verdict and judgment sustaining the...