Grebe v. Jones
| Decision Date | 01 July 1883 |
| Parties | HENRY GREBE, PLAINTIFF IN ERROR, v. RYLAND JONES AND OTHERS, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before Neville J.
REVERSED AND REMANDED.
Manderson & Congdon, Clarkson & Hunt, and James W. Savage, for plaintiff in error, cited: Morris v. Trustees, 15 Ill. 266. Cooper v. Reynolds, 10 Wall. 308. Davenport v. Lacon, 17 Conn. 278. Williams v Stewart, 3 Wis. 777. Freeman on Judgts., § 126. Drake on Attach., §§ 447, 448. Crowell v Johnson, 2 Neb. 146. Lessee of Mitchell v Eyster, 7 Ohio 257. Lessee of Parker v. Miller, 9 Ohio 113. More v. Thayer, 10 Barb., 258. Lessee of Adams v. Jeffries, 12 Ohio 272. Voorhees v. Bank of U.S., 10 Peters, 449.
G. W. Shields and J. C. Cowin, for defendant in error Pier, cited: Civil Code, §§ 198, 199, 200, 211. McGavock v. Pollock, 13 Neb. 535. Freeman on Judgments, 527. Wade on Notice, 1035, 1037. Atkins v. Atkins, 9 Neb. 199. Blair v. West Point Mfg. Co., 7 Neb. 152. Claypool v. Houston, 12 Kan. 324. Moses v. McKim, 2 Western Law Monthly, 15. Lawler v. Whetts, 1 Handy, 39. Thatcher v. Powell, 6 Wheat., 119. Wescott v. Archer, 12 Neb. 347.
On the 30th day of November, 1872, the plaintiff recovered a judgment against the defendants in the district court of Douglas county for the sum of $ 1,083.26 and costs. The action was brought upon a joint obligation, and the defendants being non-residents of the state, an attachment was levied upon lands in Douglas county belonging to Pier, and service was had by publication. In December, 1882, Pier filed a motion in said court to set aside the judgment for want of jurisdiction in the court rendering it. The motion was sustained, to which the plaintiff excepted, and now assigns the ruling on the motion for error.
The first objection to the validity of the judgment is that the affidavit for the attachment is fatally defective in not stating that the defendants had property in this state subject to attachment.
Sec. 199 of the Code provides that an affidavit for an attachment may be made by the plaintiff, his agent, or attorney, showing the nature of the plaintiff's claim; that it is just; the amount which the affiant believes the plaintiff ought to recover; and some one of the grounds for an attachment enumerated in section 198.
The affidavit for an attachment complies with these requirements and is sufficient. It is unnecessary that it should contain a statement that the defendant has property in the state.
Second. That no bond was filed. One of the grounds for the attachment against Pier was that he was a non-resident of the state, and this under our statute is a ground of attachment, no bond being required.
Third. That the return does not describe the property. The return, among other things, contains the following statement: "Received this writ June 18th, 1872, and on the next day I went to the places where the within named defendant Pier's property was, and there in presence of F. X. Dillon and P. H. Reed, two residents of said county, I did declare that by virtue of this writ, I attached said property at the suit of Henry Grebe, sheriff, and then and there, together with said residents, who were first duly sworn, I made a true and impartial appraisement of the property attached, and said appraisement duly signed is herewith returned," etc.
The appraisement contains a full description of the property attached, and the return shows beyond question that the property described therein was the property levied upon. And in our opinion the description is sufficient. But even if it was not, the court, in furtherance of justice, even now would permit the return to be amended to conform to the facts. Such amendment, however, is unnecessary.
Fourth. It is urged that the affidavit was fatally defective for the reason that: 1, It fails to show that Pier was a non-resident of this state; 2, Because it fails to show that Grebe had a good cause of action against Pier; and 3, because it does not appear therein that the cause is one of those mentioned in sec. 77 of the Code. The affidavit was made by the attorney for Grebe and it is alleged therein "that service of summons cannot be made in the above entitled cause upon either of the above named defendants, Ryland Jones, William H. Pier, and Patrick J. McNamara, in this state, all of said defendants being non-resident," etc.; "that the said defendants have in this county and state property which has been attached in the above entitled action," etc. The affidavit, while not as specific as to description of property attached as is desirable, was sufficient to authorize the publication of notice.
It is unnecessary to state a cause of action in the affidavit against the party sought to be served by publication. All that the statute requires is the oath of the plaintiff, his agent or attorney, that service of summons cannot be made within this state on the defendant or defendants to be served by publication, and that the case is one of those mentioned in sec. 77--that is, that the defendant to be served by publication has property within the jurisdiction of the court, in which the plaintiff claims an interest either by attachment or otherwise. When these facts are made to appear, service may be had by publication. As sufficient appears in the affidavit to show these facts it is not void.
The fifth objection is that the notice does not contain a description of the property attached. The notice is as follows:
In Wescott v. Archer, 12 Neb. 345, 11 N.W. 491, 11 N.W 577, it was held that where an attachment is levied upon the property of a non-resident, and service of summons is not made upon him, the court possesses no power to render judgment against him and order a sale of his property to satisfy the same unless publication has been made as required by law, and that the notice should contain a description of the property attached. In the argument of that case it was strenuously contended by the attorneys for the defendant in error that no notice whatever was necessary; that the court by the levy of the attachment acquired jurisdiction, and without a hearing could condemn real estate, and transfer the latter from the actual owner to the purchaser under the attachment, citing in support thereof, Paine v. Mooreland, 15 Ohio 435. That notice of the pendency of an action against a non-resident, by which it is sought to divest him of his property and transfer it to another, must be given to him in some mode, there can be no doubt either upon principle or authority, and all that is said in Wescott v. Archer as to the necessity of such notice we fully adhere to. And it is good practice to describe the property attached; but if this is not done, but the defendant is notified that an action has been commenced in a court and county named, to recover judgment for a specified amount against him, and that his property has been attached in that action, it is pretty clear that the notice is not void. If the property attached is within the county where the action is pending, and the description in the notice, although general in its terms, includes the property in...
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