Massey v. Scott

• Decision Date: 31 January 1872
• Parties: WILLIAM MASSEY, Respondent, v. OLIVER SCOTT, Appellant.
• Court: Missouri Supreme Court

49 Mo. 278

WILLIAM MASSEY, Respondent,

v.OLIVER SCOTT, Appellant.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Greene Circuit Court.

F. P. Wright and J. F. Hardin, for appellant.

To have been strictly regular and formal, the judgment should have ordered a special execution upon the property attached. But the omission in the form of the judgment could not vacate the attachment lien. It was one of those irregularities in form which might at any time have been corrected nunc pro tunc.

This order for a general execution includes a warrant for one of more limited or special character, as the minor warrant is obviously comprised under the greater. (2 Greene, Iowa, 385.)

Sherwood & Young, for respondent.

I. The case of Cornill v. Doolittle, 2 Greene, 385, relied on by appellant, is not supported either by reason or authority, and is based on a statute widely differing from ours. Our statute (R. C. 1855, pp. 250-51, §§ 42-4; id. 256-7, §§ 60-1) clearly indicates and provides in what form and manner judgments shall be rendered in attachment cases. In Clark v. Halliday, 9 Mo. 702, it is expressly held that in an ex parte attachment proceeding the court would transcend its jurisdiction in rendering a general judgment against the defendant. If an execution can issue upon a judgment with which it does not conform, a fortiori may one issue which does conform to the judgment; so that a plaintiff in an ex parte attachment cause, by taking a general judgment, may stretch the jurisdiction of the court and sell all the debtor's property, whether attached or not. But “it is an unquestionable rule that the execution must pursue and be warranted by the judgment, to render it valid.” (Palmer v. Palmer, 2 Conn. 462, and cases cited; Cutler v. Wadsworth, 7 Conn. 6, and cases cited.) The question here is not whether the judgment can be doctored with a nunc pro tunc, as this was not done.

II. The affidavit in the case of Waddel v. Jones is fatally defective, in that it does not allege the existence of any fact which, under our statute, would authorize the issuance of a writ of attachment. It only alleges that “affiant has good reason to believe that defendant has absconded,” etc. The affidavit in an attachment cause is a jurisdictional fact and the basis on which all subsequent proceedings therein must rest, and if it be not in conformity with the statute, every other step will be coram non judice. (Drake Attach., §§ 84, 88; Talbot v. Woodlee, 19 Wis. 174, and cases cited; Staples v. Fairchild, 3 Comst. 41; Maples v. Tunis, 11 Humph. 108; Conrad v. McGee, 9 Yerg. 428; Page v. Ford, 2 Sm. & M. 266; Clark v. Roberts, Breese, 222; Smith v. Bouchier, 2 Stra. 993; Smart v. Howe, 3 Gibbs, Mich., 590; Buckley v. Loury, 2 Gibbs, 418; Forbes v. Hyde, 31 Cal. 342; Harrington v. Loomis et al., 10 Minn. 366; Stadler v. Parmlee & Watts, 10 Iowa, 23; Miller v. Brinkerhoff, 4 Denio, 118; Pool v. Webster, 3 Metc., Ky., 278; Gunnar v. Raymond, 1 Conn. 40, and cases cited.)

ADAMS, Judge, delivered the opinion of the court.

This was ejectment for land in Webster county, the case having been sent to the Greene Circuit Court by change of venue.

It was admitted that R. M. Jones was the common source of title. The plaintiff relied on a deed executed to him by Jones, of date January 1, 1868. It was admitted that defendant was in possession of the premises at the commencement of the suit, as tenant of A. Caldwell, and that the value of the rents and profits was $60 per annum.

The defendant relied on a deed to his landlord, Caldwell, for said premises, from the sheriff of Webster county, dated April 25, 1866, which purports to convey the premises as the property of said Jones, under and by virtue of a sale under a special execution issued on a judgment rendered in the Circuit Court of Polk county on the 30th of March, 1865, in favor of John S. Waddel and against said Jones. Said deed also recites that a writ of attachment issued in said cause on the 23d of September, 1863, and was levied on the next day on the premises sued for as the property of said Jones. The transcript of the record in said attachment was read in evidence, and showed that the suit was commenced in Webster by attachment, on affidavit that the affiant “has good reason to believe that defendant has absconded,” etc., without alleging that he does believe, etc. There was no personal service, but the defendant Jones was notified by order of publication, the attachment case having been transferred by change of venue to Polk Circuit Court. This transcript also shows that a general judgment was rendered in the attachment suit against Jones, and that a special execution was issued to Webster county, commanding the sheriff to levy the same on the attached property. The transcript also shows the return of said...