Kipp v. Burton

• Decision Date: 04 November 1903
• Parties: KIPP v. BURTON et al.
• Court: Montana Supreme Court

74 P. 85

29 Mont. 96

KIPP v. BURTON et al.

Supreme Court of Montana

November 4, 1903

Commissioners' Opinion. Appeal from District Court, Silver Bow County; Jno. Lindsay, Judge.

Action by Henry Kipp against Ruth A. Burton and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

McHatton & Cotter, for appellants.

C. M Parr, for respondent.

POORMAN C.

In this action plaintiff obtained judgment against defendant Burton for the sum of $364.15 and costs on April 9, 1896. Thereafter, on April 16, 1896, a writ of execution was issued on said judgment, which writ was correct in all respects so far as the questions here presented are concerned, except that the seal of the court was not placed thereon. On May 11 1896, the sheriff returned the writ with the indorsement that he had made the amount thereof by selling certain real estate of the defendant. On December 22, 1900, the plaintiff served notice on defendant that he would, on December 26, 1900, move the court to amend the writ of execution by ordering the seal to be placed thereon. At the hearing of this motion on said 26th day of December, 1900, the defendant appeared specially by her attorney "for the purpose of objecting to the jurisdiction of the court to make the order asked for, and upon the further ground that no notice of the said application had ever been served upon defendant or her attorneys." These objections were by the court overruled, "and thereupon the court immediately made an order, and had the same entered of record in the minutes, *** authorizing and directing the clerk *** to attach to the said pretended execution *** the seal of said court." To this action of the court the defendant excepted. From this order so made this appeal is prosecuted.

1. The respondent asks to have this appeal dismissed for the reason that the record contains no copy of the order appealed from. The record presented to this court shows that there is no merit in the motion. It should, therefore, be overruled.

2. The appellant contends that the court erred (1) in permitting said execution to be amended by attaching the seal thereto (2) in ordering or directing that the seal be attached to the pretended execution nunc protune, and (3) in holding that it had jurisdiction to make the said order.

The first question to be considered--and which we deem the vital question in this case--is whether the writ of execution so issued without the seal was void, or merely voidable. If it were void, it could not be amended, for that which is void is not the subject of amendment. If, however, the writ was merely voidable, it could be amended, provided that the amendment was made within the proper time and in the proper manner. On this question the authorities are in irreconcilable conflict. One line of decisions holds that the common-law rule that an unsealed writ is void should prevail. The other line of decisions maintains that the omission of the seal is a misprision, and may be remedied by amendment. The Code provisions relative to the form and contents of a writ of execution, so far as material here, are found in section 1211, Code Civ. Proc., and are as follows: "The writ of execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the clerk, and must be directed to the sheriff, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll is filed, and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the sheriff substantially as follows," etc. Appellant refers to the discussion in Choate v. Spencer, 13 Mont. 127, 32 P. 651, 20 L. R. A. 424, 40 Am. St. Rep. 425, as sustaining the contention that the writ in this case is void. The question before the court in that case was whether a summons not containing the seal of the court was void. The court, in the discussion of the principle involved, stated that the statute, in requiring a summons to be issued under seal, did not change the common law, and then called attention to Insurance Co. v. Hallock, 6 Wall. 556, 18 L.Ed. 948. This latter case went up from the state of Indiana in 1867. The point decided was that an unsealed order of sale was void by reason of the common law; but in Hunter v. Burnsville Turnpike Co., 56 Ind. 213, decided in 1877, it was held that an unsealed order of sale was amendable by reason of the provisions of the statute of Henry VI, c. 12, which was at that time in force in that state; and in Warmoth v. Dryden, 125 Ind. 355, 25 N.E. 433, the same court says: "While there is much conflict in the authorities upon this subject, the better opinion is that the failure to attach the seal of the court to an execution does not render it void." It is apparent that it was not the intention of the court in Choate v. Spencer to establish the general doctrine that all writs must be issued under seal, but that reference was made to Insurance Co. v. Hallock as sustaining the position that the summons must be so issued; for, if a court hold that a subsequent writ must be sealed, it is apparent that the same court would hold that the summons--the original writ, the jurisdictional writ--must likewise be sealed. This construction of the decision in Choate v. Spencer, and the fact that the court had in mind that a distinction exists between a summons and subsequent writs, are gathered from the closing paragraph of the decision, which is as follows: "We hold in the case at bar that the summons--the jurisdictional writ--under the law and decisions in force and controlling in this jurisdiction at the time of its issuance was void, because not issued under the seal of the court. If this case involved a defective process, issued subsequent to summons, and the acquiring of jurisdiction by the court thereunder, then the contention of respondents that such defect or irregularity could be amended or disregarded might be urged with great force."

Under the Wisconsin statutes courts are required to disregard any error or defect in any proceeding not affecting a substantial right. Rev. St. Wis. 1898, § 2829. Power is given at any stage of the action, before or after judgment, in furtherance of justice, to amend any process by correcting a mistake in any respect. Section 2830. Under this statute the court, in Corwith v. Illinois State Bank, 18 Wis. 560. 86 Am Dec. 793, says: "The neglect of the clerk to affix the seal of the court to the writs does not render them void. It was a defect which could be cured by amendment. *** The seals were affixed to the executions by an order of the court before this motion was made to set aside the sales." These statutes of Wisconsin under which this decision was rendered are substantially the same as sections 774, 778, of our Code of Civil Procedure. In Wolf v. Cook (C. C.) 40 F. 432-a case originating in Wisconsin, and carried to the federal court, involving the question as to whether the omission of a seal from a writ of attachment rendered the writ void or voidable--the court says, in discussing the question with reference to the Wisconsin decision above referred to, and the case of Insurance Co. v. Hallock, supra: "It is, however, insisted that, the writ being absolutely void under the rule of the federal court in Insurance Co. v. Hallock, supra, there was nothing to amend. *** Here is a writ that, abiding in the state court, was not void; merely defective, and amendable. *** By the simple process of removal of the cause to the federal court because of the diverse citizenship of the parties, that which was valid and effective becomes void. *** The executive officer of the state court, who, prior to the removal of the cause, was justified in the execution of the writ, by the mere act of removal becomes a trespasser ab initio. It would require a precise declaration of superior and constraining authority to require me to hold to such absurdity. I do not so read the decision in Insurance Co. v. Hallock. There no question of inherent power to amend or of curative statutes was invoked. Indeed, the statute authorizing amendment of process by the federal courts (Rev. St. U.S. 948 [U. S. Comp. St. 1901, p. 695]) was enacted subsequently to that decision. The court, in its opinion, refers to the case of Overton v. Cheek, 22 How. 46, 16 L.Ed. 285, holding that a writ of error was void for want of a seal. Yet since the statute ([Act June 1, 1872, c. 255,§ 3] 17 Stat. 197) it has been ruled by that court that a writ of error may be amended where the seal to the writ is wanting. Semmes v. U. S., 91 U.S. 21, 24 . The ruling of Pomeroy v. Bank, 1 Wall. 592 , cited in Insurance Co. v. Hallock, that a bill of exceptions must be under the seal of the judge, would seem overruled by Generes v. Campbell, 11 Wall. 193 , but upon other grounds than here considered. In Tilton v. Cofield, 93 U.S. 167 , the court cites approvingly the case of Talcott v. Rosenberg, 8 Abb. Prac. (N. S.) 287, holding that a writ may be amended by adding the seal. *** In such case the federal courts follow the construction of the state statute, declared by its court of last resort. Bacon v. Insurance Co., 131 U.S. 258 [9 S.Ct. 787, 33 L.Ed. 128]; Duncan v. Gegan, 101 U.S. 810 ." These federal decisions and the Indiana decision in Hunter v. Burnville, supra, all rendered subsequent to the decision in the Hallock Case, would seem to render that case inapplicable to a state having a statute permitting amendments to judicial processes. In Gordon v. Bodwell, 51 P. 906, 68 Am. St. Rep. 341, the court holds that an order of...