H.L. Griffin Co. v. Howell

• Decision Date: 14 January 1911
• Docket Number: 2110
• Citation: 113 P. 326,38 Utah 357
• Court: Utah Supreme Court
• Parties: H. L. GFIFFIN COMPANY v. HOWELL, Judge

113 P. 326

38 Utah 357

H. L. GFIFFIN COMPANY v. HOWELL, Judge

No. 2110

Supreme Court of Utah

January 14, 1911

Application by the II. L. Griffin Company for a writ of mandate against Hon. J. A. Howell, Judge of Second District Court, in and for Waber County, Utah.

WRIT ISSUED.

J. D Keen for plaintiff.

M. E Wilson and J. D. Johnson for defendant.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

An application is here made for a writ of mandate. The H. L. Griffin Company on the 10th of March, 1908, filed a- verified complaint in the municipal court at Ogden -- a court which, for all purposes of this proceeding, may be denominated a justice court -- against George A. Vanderbeck, wherein it was alleged that "the plaintiff purchased from the defendant one car load of onions at Toledo, Ohio, and paid therefore the sum of four hundred and eighty-seven dollars; that said defendant undertook and agreed to load the said onions in a car and to properly pack them so that they could be safely transported to the city of Ogden; that said defendant carelessly and negligently lined said car with paper and failed and neglected to provide proper ventilation for said car, by reason of which said onions became spoiled and unmarketable," to plaintiff's damage in the sum of two hundred dollars. An affidavit for attachment was filed, wherein it was averred that the defendant was indebted to the plaintiff in the sum of two hundred dollars upon a contract, and that the defendant was a nonresident. A writ of attachment was issued and property of the defendant consisting of money in the sum of two hundred and ten dollars was seized at Ogden. There was no personal service, but a publication of summons. On the 29th of June, 1908, the default of the defendant was entered and upon the evidence adduced on behalf of the plaintiff a judgment was entered against the defendant for the sum of two hundred dollars and eight dollars and seventy cents costs, and the attached property proceeded against in satisfaction thereof. On the 22d day of July, 1908, the defendant served and filed a written motion and notice, in which he stated that he appeared specially for the purpose of the motion, to vacate and set aside the judgment on the ground that the court, when the judgment was entered, had no jurisdiction of his person nor of his property. The motion was argued by counsel for the respective parties and by the court denied on the 30th day of July, 1908. Thereupon the defendant, on the 21st day of October, 1908, took a general appeal to the district court "from the judgment therein made, and entered in said municipal court on the 29th day of June, 1908, in favor of the plaintiff and against the defendant, and from the whole thereof." After the papers had been transmitted to the district court the defendant, on the 16th day of December, 1908, served and filed a written motion and notice (again stating he appeared specially for the motion) to discharge the attachment theretofore issued by the municipal court, on the ground that it was improperly and irregularly issued, in the particular that the action was not one upon contract, express or implied, but in tort, "as is shown by the complaint in said action." This motion was argued and submitted to the court on the 9th day of January, 1909. On the 18th day of November, 1909, the district court not only discharged the attachment, but also dismissed the action and refused to further proceed with the case. The plaintiff thereupon applied to this court for a writ of mandate to compel the district court to reinstate the case and to proceed with it, and also to reinstate the attachment.

The district court evidently proceeded on the theory that in the complaint a cause of action in tort and not on contract was alleged; and since the state permitted an attachment of property to satisfy an indebtedness or demand on contract only, and not in tort, the municipal court was not authorized to issue the attachment, and for that reason the district court dissolved it. It then dismissed the action on the theory that since there was no service on the defendant within the jurisdiction of the court, and no appearance made by him before judgment, a seizure of property of the defendant within the jurisdiction of the court upon a writ of attachment properly issued on an indebtedness or demand on contract was essential to confer jurisdiction on the municipal court to proceed and render a judgment, which proceeding in such case became a proceeding in rem, and since the municipal court improperly issued the writ, and was without jurisdiction to render a judgment, no jurisdiction was conferred on the district court by the appeal; that if jurisdiction was conferred, it was lost when the district court dissolved the attachment, the proceeding being one in rem; that the court was then without jurisdiction to further proceed in the action because it had no jurisdiction of the person of the defendant, notwithstanding the general appeal, so as to render a personal judgment against him; and that even though it had acquired such jurisdiction, still the district court was not authorized to convert the proceeding characterized in rem in the municipal court into an action in personam in the district court.

The ruling made by the district court dissolving the attachment is not reviewable by us, on a proceeding of this kind, except to the extent in which jurisdictional matters may be involved. A court having conferred upon it jurisdiction may not divest itself of jurisdiction not depending upon facts, by an erroneous decision on matters of law that it has no jurisdiction. The complaint in the municipal court, though brief and somewhat incomplete in some particulars, yet characterized the action as one on contract and not in tort. But in considering the jurisdictional matters in that respect we think too much stress was laid on the complaint. To entitle a plaintiff to a writ of attachment, the nature and amount of the indebtedness, whether upon a judgment or a contract express or implied, are required to be stated in an affidavit to be filed by him or in his behalf. An affidavit was filed on behalf of the Griffin Company in which were stated the amount of the indebtedness, and its nature to be on contract. To what extent a verified complaint may be looked to for the purpose of disputing or aiding averments in the affidavit need not now be considered. It may be that a variance between essential averments of the affidavit and the complaint may support a plea in abatement or a motion to dissolve the attachment. But it is the averments of the affidavit, not the complaint, which confer the power to issue the writ; and it is the seizure of property of the defendant under the writ and within the jurisdiction of the court which gives it control over the res and the power to proceed against it. Of course to authorize the court to properly deal with and dispose of it, there must also be a complaint, as in -an action in personam, and also service or publication of summons as by the statute provided. But that which authorizes the seizure of the property and which brings the res into court and gives it control of it, is the affidavit and writ, not the complaint.

A proceeding to enforce the payment of a debt or demand by attachment against the defendant's personal property within the jurisdiction of the court partakes in its nature and character of a proceeding in rem and also of an action in personam. If the defendant is served within the jurisdiction, or appears generally, the proceeding is in the nature of a personal action. He is liable in such case to a personal judgment, if the indebtedness is established, irrespective of the property seized, with the added incident that the property attached remains liable under the control of the court to answer to the demand established against the defendant by the final judgment of the court. If there be no such...