Ireland v. Adair

• Decision Date: 25 April 1903
• Citation: 94 N.W. 766,12 N.D. 29
• Court: North Dakota Supreme Court

94 N.W. 766

12 N.D. 29

S. A. IRELAND v. LILLIAN ADAIR

Supreme Court of North Dakota

April 25, 1903

Appeal from District Court, Ransom County; Lauder, J.

Action by S. A. Ireland against Lillian Adair. Judgment as entered as by default. Defendant appeals.

Reversed.

Judgment reversed and declared void.

Ball Watson & Maclay, for appellant.

Complaint is not properly verified since its matter could not be with the personal knowledge of plaintiff's attorney; and so far as affidavit of verification states, that he "believes it to be true," it carries no force since none of the matters contained in such complaint is alleged upon information and belief. The verification does not comply with section 5281, Rev. Codes. Oelbermann et al. v. Ide, 68 N.W. 393. There being no valid levy of a writ of attachment, the Court acquired no jurisdiction. Judgment in such a case has no force, other than it may be satisfied out of the property attached. Cooper v Reynolds, 77 U.S. 308, 19 L.Ed. 931. Under section 5362, sub-div. 4, the sheriff must serve on the person holding property of defendant, a notice specifying the property attached; and the lien of the attachment exists only from the time that levy is made in accordance with that provision. Sheriff must file the inventory provided in such section within twenty days from the time of the seizure. Clark v. Goodridge, 41 N.Y. 210; O'Brien v. Ins. Co., 56 N.Y. 52; Hamilton v. Hartinger, 64 N.W. 502; Sioux Valley State Bank v. Kellogg, 46 N.W. 859. The affidavit for publication was fatally defective. It did not state defendant's residence, nor show that it was unknown. Sec. 5254 Rev. Codes. Ricketson v. Richardson, 26 Cal. 153; Ligare v. California South. R. Co., 76 Cal. 610, 18 P. 777; Appendix, 1 Dak. 479, 480. Abell v. Cross, 17 Ia. 171; Hodson v. Tibbets, 16 Ia. 97. Affidavit is defective in that it has no venue. Appendix, 1 Dak. 485.

T. A. Curtis and F. S. Thomas, for respondent.

The object of a verification is to insure good faith in the averments of the parties, and need not pursue the exact language of the Code. Patterson v. Ely, 19 Cal. 28. Verification is no part of the pleading and not necessary to give the Court jurisdiction. George v. McAvery, 6 How. Pr. 200; Johnson v. Jones, 2 Neb. 136. Objection to verification cannot be raised for the first time in the Supreme court. Kuhland v. Sedgwick, 17 Cal. 123. Under Rev. Codes, section 5281, a verification of a pleading to compel verification of subsequent pleadings, does not apply to a complaint verified to obtain an attachment under section 5356, Rev. Codes. Sioux Valley State Bank v. Kellogg, 46 N.W. 859. Receipting for personal property attached under subdivision 4 of section 5362, Rev. Codes, waives notice required by the section. Foster v. Davenport, sheriff et al., 80 N.W. 403. An affidavit alleging that the defendant is a nonresident of the state is sufficient to obtain an order for publication. Byrne v. Roberts, 31 Ia. 319. Dornillard v. Whistler, 29 Ind. 552. The sheriff made diligent seach and inquiry to serve summons on defendant and was unable to find him in Ransom county, N.D. Affidavit and return show sufficient proof to give the Court jurisdiction. D. Marx v. William M. Ebner, 180 U.S. 314, 45 L.Ed. 547. Amendment of affidavit stating place of defendant's residence may be properly made, and when not called to the attention of the court below, appellate court should allow it. Hogue v. Corbit, 156 Ill. 540, 41 N.E. 219; Kuhland v. Sedgwick, 17 Cal. 123. In most jurisdictions it is presumed that officers act within their jurisdictions, and while proper to prefix the venue, its omission is not fatal. Reavis v. Cowell, 56 Cal. 588; Stone v. Williamson, 17 Ill.App. 175; Baker v. Agricultural Land Co., 61 P. 412; Young v. Young, 18 Minn. 90; Merriam v. Coffee, 16 Neb. 450; State v. Hemming, 3 S.D. 492; Ormsby v. Ottman, 85 F. 492.

OPINION

COCHRANE, J.

This action was to recover the amount of a running account. An affidavit for attachment, containing the statutory requirements, was made, and the proper undertaking for attachment was given and approved. All papers were filed in the office of the clerk of the district court of Ransom county. A warrant of attachment, in proper form, was issued and delivered to the sheriff of the county, who made the following return of his procedure under the warrant: "I, A. C. Cooper, as sheriff of the county of Ransom, state of North Dakota, certify that the summons, affidavit of attachment, undertaking on attachment, and warrant of attachment herein came into my hands for service on the 5th day of July, 1902; that I served the same upon C. E. Pearson and Gilbert La Du, as executors under the last will and testament of James Adair, deceased, by leaving with them a true and correct copy of the same; that C. E. Pearson and Gilbert La Du, as executors of the last will and testament of James Adair, deceased, certify under their hands and seals that they hold a sum of money, to wit, $ 500, belonging to Lillian Adair, defendant." Nothing further appears from the judgment roll to have been done by the sheriff in execution of his warrant, or in fulfillment of the directions of sections 5631, 5632, 5381, Rev. Codes. Before the issuance of this warrant of attachment, an affidavit for publication of summons was made by plaintiff's attorney, in which it was stated that the defendant is not a resident of the state; that she has property in the state, and debts owing her from residents thereof. The sheriff's return upon the summons shows that defendant could not be found and was unserved. The summons was published and proof of publication made, and, on affidavit of default, a judgment was entered for the amount claimed in the complaint, with interest and costs. This appeal is from the judgment.

Personal service was not made upon defendant in this case, and she did not voluntarily appear. But the jurisdiction of the court to enter judgment, if any existed, was secured by publication of summons pursuant to the statute. The appellant assails the judgment as void for want of jurisdiction, on several grounds.

It is urged that there was no valid levy of the attachment, and consequently no property of the defendant was subjected to the jurisdiction of the court. The sheriff's return on the warrant of attachment does not show a valid levy of the attachment upon the $ 500 due from Pearson and La Du to the defendant, Lillian Adair, because the sheriff did not serve upon Pearson and La Du a notice to the effect that he attached or levied upon the indebtedness. The statute (section 5362, subd. 4, Rev. Codes) provides that a levy under a warrant of attachment must be made upon personal property not capable of manual delivery by leaving a copy of the warrant and a notice showing the property attached with the person holding the same, and if it consists of a demand other than bonds, promissory notes, and instruments for the payment of money, the copy of the warrant and notice showing the property attached must be left with the person against whom it exists. The lien of the attachment is effectual from the time such levy is made. The property here sought to be subjected to the lien of the attachment was a debt due to the defendant, and, under the imperative requirements of the statute, could only be attached in the method indicated. The proceedings by attachment are...