McLaughlin v. Wheeler

• Decision Date: 22 December 1891
• Citation: 2 S.D. 379,50 N.W. 834
• Parties: McLAUGHLIN et al. v. WHEELER et al.
• Court: South Dakota Supreme Court

2 S.D. 379, 50 NW 834 (1891)

McLAUGHLIN et al.

v.WHEELER et al.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. Charles M. Thomas, Judge

Former opinion adhered to.

Van Cise & Wilson

Attorneys for appellants and petitioners for re-hearing.

McLaughlin & Steele

Attorneys for respondents.

Opinion filed Dec 22, 1891

(See 1 SD 497, 47 N.W. 816)

KELLAM, P. J.

This case was before this court at the October term, 1890, and the opinion is reported in 1 SD 497, 47 N.W. 816, where the facts fully appear. A petition for reargument was granted and it is now again before us on such rehearing. One of the subjects of appeal was an order of the court below refusing to discharge and affirmatively continuing in force plaintiffs' attachment. This motion to discharge was made after defendants had appeared generally in the case, and given an undertaking as provided in Section 5010, Comp. Laws, and was based on the ground that neither service of the summons was personally made, nor its publication commenced, within 30 days from its issue, as required by Section 4993, Comp. Laws. The fact was conceded that the first publication of the summons was made on Sunday, which was the twenty-ninth day after its issue; that there was no publication an Monday, because no paper was issued on that day; and that the next publication was on Tuesday, the thirty first day. Besides the question as to the legal effect of the Sunday publication, the discussion of counsel, both oral and printed, was directed to the question whether a motion to discharge, under Section 5011, could be made and entertained after defendants had given an undertaking under Section 5010. In determining the general question in the negative, we think we were right, but we are now satisfied we did not sufficiently consider what would be the effect upon the attachment itself of a failure to comply with the statute as to personal service or publication of the summons within the 30 days limited. Assuming for the moment that the Sunday publication was not good, so that the publication of the summons was not commenced within 30 days, did such failure constitute an irregularity simply, waived or cured by the subsequent appearance of defendants, and their giving an undertaking in recognition of, and as a substitute for, the attachment, or did it make the attachment absolutely void and of no effect from and after the expiration of the 30 days, so that there was no consideration for such undertaking? Section 4993, Comp. Laws, which authorizes an attachment "in an action," provides, among other things: "And for the purposes of this section an action shall be deemed commenced when the summons is issued; provided, however, that personal service of such summons shall be made, or publication thereof commenced, within thirty days." Thus the vitality of the attachment beyond the thirty days is made to depend upon compliance with this condition.

At the expiration of the 30 days, the summons not having been personally served, nor its publication commenced, the statutory support ceased, and the attachment itself went town. From that time there was no attachment. Speaking of the force and value of an attachment after a failure to serve or commence publication of the summons as required by that statute, the New York court of appeals, in Blossom v. Estes, 84 N.Y. 614, says:

"It was good when issued, but remained so for thirty days only, unless within that time one or the other of the two steps was taken. The plaintiff, however, neither served the summons personally nor by publication. At the end of that time the statutory bar fell, and with it the attachment. The jurisdiction which attached upon allowance of the warrant ceased, and as to that proceeding it was as if the statute had been repealed."

See, also, Cummings v. Tabor, 61 Wis. 185, 21 NW 72; Taylor v. Troncoso, 76 N.Y. 599. With this view, it becomes important to ascertain the legal effect of the first publication on Sunday, for, if that were a good and sufficient publication, it was a commencement of the publication within the 30 days. The attachment was issued upon the ground of the non-residence of defendants, and, as already indicated, the summons was issued September 3, 1886. On the 2nd day of October the court made an order for the publication of the summons. The first publication thereunder was made on the 3d day of October, which was Sunday, and the next publication on Tuesday, the 5th. There was no issue of the paper on Monday, the 4th. Sunday was the twenty-ninth, and Tuesday the thirty-first day after the issue of the summons. Was the publication on Sunday a legal publication, so as to meet the conditions of Section 4993, Comp. Laws, requiring the publication to be commenced with-in 30...