Griffith v. The Milwaukee Harvester Co.

• Decision Date: 14 December 1894
• Citation: 61 N.W. 243,92 Iowa 634
• Parties: D. GRIFFITH v. THE MILWAUKEE HARVESTER COMPANY et al., Appellants
• Court: Iowa Supreme Court

61 N.W. 243

92 Iowa 634

D. GRIFFITH v. THE MILWAUKEE HARVESTER COMPANY et al., Appellants

Supreme Court of Iowa, Des Moines

December 14, 1894

Appeal from O'Brien District Court.--HON. GEORGE W. WAKEFIELD Judge.

ACTION in equity to have set aside an entry of judgment against the plaintiff, and a sheriff's sale and conveyance of real estate made by virtue of the judgment, and for general equitable relief. The defendants resist the granting of the relief demanded, and ask that certain amendments to the petition and attachment bond filed in the action in which the judgment in question was rendered be permitted, and for general equitable relief. There was a hearing on the merits and a decree in favor of the plaintiff, from which the defendants appeal.--Reversed.

Decree REVERSED.

T. F Ward for appellants.

O. H Montzheimer and Wesley Martin for appellee.

OPINION

ROBINSON, J.

On the thirteenth day of February, 1891, a petition which was entitled "The Milwaukee Harvesting Company, Plaintiff, v. D. Griffith et al., Defendants," was filed in the district court of O'Brien county. The petition sought a recovery on two judgments alleged to have been rendered against Griffith, who is the plaintiff in this action, and asked a writ of attachment against his property. Judgment was demanded for the sum of one hundred and thirty-two dollars and twenty-three cents, with interest thereon at the rate of eight per cent per annum from the fifteenth day of December, 1890, and costs. An attachment bond in the penal sum of two hundred and seventy-five dollars was filed, and a writ was issued and levied upon the northeast quarter of section 8 in township 96 north, of range 40 west, then owned by Griffith. On the fourteenth day of February, 1891, a notice of the action was served upon Griffith, personally, in the state of Wisconsin. He was then, and at all times since has been, a resident of that state. He made no appearance in the action, and on the third day of March judgment was rendered against him for the sum of one hundred and thirty-four dollars and fifty-two cents, with interest at eight per cent, and costs, taxed at eleven dollars and ninety-five cents. A special execution was issued for the sale of the lands described. The land was sold on the eighteenth day of April, 1891, to the defendant T. F. Ward, and on the twentieth day of April, 1892, the sheriff executed a deed to him pursuant to the sale. The land, when sold, was of the value of about three thousand dollars, and was incumbered by a mortgage to the amount of five hundred dollars. The sale was made subject to that mortgage for the sum of one hundred and sixty-nine dollars and twenty cents. Griffith did not know of the sale until after the sheriff's deed had been delivered, although notice of the levy and sale was addressed to him at the postoffice where he regularly received his mail, and mailed. At the time of the sale no one was living upon or in actual occupation of the land, but it was cultivated by a tenant who lived on an adjoining farm. After receiving the deed, Ward executed a conveyance of the land to the defendant K. Hughes. This action was commenced on the fifth day of May, 1892. The plaintiff asks that the sheriff's sale and deed be set aside and declared void, that the judgment be set aside, and that he be permitted to defend in the action against him. The district court granted the relief thus demanded. The defendant the Milwaukee Harvester Company was permitted to amend its petition in the cause in which judgment was rendered, and to file a sufficient bond.

I. It is claimed that the attachment proceedings were invalid because of the failure of the Milwaukee Harvester Company to file a sufficient bond. Section 2959 of the Code provides that "in all cases before an attachment can be issued the plaintiff must file with the clerk a bond for the use of the defendant * * * in a penalty at least double the value of the property sought to be attached." Section 2954 of the Code requires the sheriff to levy a writ of attachment "upon property fifty per cent greater in value" than the amount stated in the petition, under oath, to be due. Under these provisions, the amount for which the bond in question should have been given was three times the sum alleged in the petition to be due, or for not less than four hundred and three dollars and fifty-six cents. It is not within the discretion of the court to permit the filing of a bond for a smaller amount than that required by the statute, and upon a proper motion an attachment will be dissolved for failure to file a bond in the necessary amount. Churchill v. Fulliam, 8 Iowa 45; Hamill v. Phenicie, 9 Iowa 525; Fleitas v. Cockrem, 101 U.S. 301, 25 L.Ed. 954; Waples, Attach. 116. Section 3018 of the Code authorizes the discharge of an attachment on motion at any time before the trial for insufficiency of statement of cause of attachment or for other reasons making it apparent of record that the attachment should not have issued. But section 3021 of the same chapter contains the following: "This chapter shall be liberally construed and the plaintiff at any time when objection is made thereto, shall be permitted to amend any defect in the petition, affidavit, bond, writ, or other proceeding; and no attachment shall be quashed, dismissed, or the property attached released, if the defect in any of the proceedings has been or can be amended so as to show that a legal cause for the attachment existed at the time it was issued; and the court shall give the plaintiff a reasonable time to perfect such defective proceedings. * * *" One of the evident purposes of this section is to prevent the loss to the plaintiff, by reason of defects in the proceedings which he is able and willing to cure, of the benefits he would derive from the attachment, and to give him a reasonable opportunity to make the necessary corrections. A sufficient bond may be given in lieu of a defective one, and when that is done the new bond will be treated as security from the time the first one was given. Branch of State Bank v. Morris, 13 Iowa 139. But until objection is made, and until a reasonable opportunity has been given to the plaintiff to perfect proceedings in which there are curable defects, such proceedings will be treated as valid. See State v. Foster, 10 Iowa 435. In the case in question it does not appear that the defect in the bond was the result of any intent on the part of the plaintiff to evade the requirements of the statute. The fact that Griffith was a nonresident, and served with notice outside of the state, does not make the case an exception to the general rule. Provision is made for the service of notice of an action aided by attachment on nonresidents, by publication, to confer upon the court jurisdiction to render judgment against the attached property. Code, section 2618. The actual service of notice on Griffith in Wisconsin was a substitute for service by publication. Code, section 2621. We are of the opinion that the defect in the bond did not prevent the acquiring of a lien on the land in question.

II. No valid personal judgment can be rendered by a court of this state against a defendant, who has been served by publication only, who has not made an appearance. As personal service on a nonresident, made outside the state, is only a substitute for service by publication, no personal judgment can be rendered against a nonresident so served who has not made an appearance. Bates v. Railway Co., 19 Iowa 260; Darrance v. Preston, 18 Iowa 396; Smith v. Griffin, 59 Iowa 409, 13 N.W. 423, and cases therein cited. It is insisted that the judgment rendered against Griffith was personal, and not against the attached land, and therefore that it is void. The judgment is "* * * that said plaintiff have and recover judgment against the defendant, D. Griffith, in the sum of one hundred and thirtyfour and 52-100 dollars, with eight per cent interest on same from this date, and costs in this case taxed in the sum of eleven and 95-100 dollars, and that the property attached, to wit, northeast quarter of section eight (8), township ninety-six (96), range forty (40) west of the 5th P. M. Iowa be sold to satisfy said judgment and costs, and that a special execution issue for the sale thereof." If the portion which directed the sale of the attached property had been omitted, the judgment would have been a personal one, and therefore void. But it states the amount which the harvester company was entitled to recover, and that is essential in a judgment in rem. As an entirety, it is sufficient, although perhaps not in the best form, to constitute a valid judgment against the land. See Mayfield v. Bennett, 48 Iowa 194. In the cases of Smith v. Griffin, supra, and Cassidy v. Woodward, 77 Iowa 354, 42 N.W. 319, judgments might have been rendered against the land...