Perry v. Griefen

• Decision Date: 24 December 1904
• Citation: 99 Me. 420,59 A. 601
• Parties: PERRY v. GRIEFEN.
• Court: Maine Supreme Court

59 A. 601

99 Me. 420

PERRY

v. GRIEFEN.

Supreme Judicial Court of Maine.

Dec. 24, 1904.

(Official.)

Exceptions from the Supreme Judicial Court, York County.

Action by John E. Perry against Richard A. Griefen. Judgment for plaintiff, and defendant excepts. Exceptions overruled. Judgment on the default.

Argued before WHITEHOUSE, STROUT, SAVAGE, PEABODY, AND SPEAR, JJ.

George F. Haley and Leroy Haley, for plaintiff.

Frink & Marvin and George C. Yeaton, for defendant.

PEABODY, J. The plaintiff sued out of the clerk's office of this court, in York county, an original writ of attachment, dated February 24, 1903, against the defendant, Richard A. Griefen, returnable at the May term, 1903, in York county. In this writ the defendant was described as of Chicago, in the state of Illinois. The declaration was for merchandise sold and delivered. The writ was placed in the hands of a deputy sheriff for York county, who made upon it the following returns, viz.:

"State of Maine. York—ss.: Kittery, Feb. 24, 1903, at three o'clock in the afternoon. By virtue of the within writ I attached a lot of lumber valued at $200, a lot of brick, valued at $100 and a lot of tools valued at $25, as the property of the within named defendant Richard A. Griefen, the value of all amounting to $325, now on the Navy Yard in Kittery in said County, and within five days of said attachment, to wit, on the 27th day of Feb. 1903, I filed in the office of the town of Kittery an attested copy of so much of my return on this writ as relates to the above named attachment with the value of the defendant's property which I am commanded to attach, the names of the parties, the date of the writ and the court to which the same is returnable. J. T. Lewis, Deputy Sheriff.

"York—ss.: On this 14th day of April, 1903, I made service on the within named defendant by giving in hand to Charles A. Noble, Richard A. Grlefen's agent, a summons for his appearance at court. J. T. Lewis, Deputy Sheriff."

No other service was made on the defendant. It is not denied that the goods attached were the property of the defendant. The writ was returned to and entered in court, and counsel for defendant, appearing specially for that purpose, moved the court to dismiss the action for want of jurisdiction. The court overruled the motion, and defendant's counsel excepted.

"In all actions commenced in any court proper to try them jurisdiction shall be sustained if goods, estate, effects or credits of any defendant are found within the state and attached on the original writ; and service shall be made as provided in section twenty-one." Rev. St 1903, c. 83, § 12. The officer having the writ for service returned that he had found goods of the defendant within the state, viz., a lot of timber, a lot of brick, and a lot of tools on the navy yard in Kittery, and that he had attached them on the writ This return must be taken as true in this action, for the determination of the question raised, leaving the parties to their right of action against the sheriff if the return be untrue. Craig v. Fessenden, 21 Me. 34.

The defendant insists, however, that the return is not sufficiently definite as to the description, quantity, and location of the goods to constitute a valid attachment, and hence that, according to the return itself, the goods were not attached. Although the return is not so definite and explicit in these respects as may be desirable, and might not be sufficient to protect the officer in proceedings against him, we think it sufficiently shows that goods of the defendant were actually attached on the writ in this state. That is enough for jurisdictional purposes, at least. If more definiteness and detail are wanted for other purposes, the return is amendable to that extent. Reed v. Howard, 2 Metc. (Mass.) 36; Clement v. Little, 42 N. H. 563.

The defendant again insists that, if ever made, the attachment was dissolved before entry of the action by errors of the officer in the return made by him to the town clerk, and that this dissolution of the attachment before entry deprived the court of jurisdiction. But the filing of a copy of the return in the statutory office is not a part of the process of attaching personal property, as it is in attaching real estate. Personal property can be attached, and the attachment preserved, without any such filing, and also if the copy filed be defective. The officer must take actual possession of personal property, as he did in this case, and the statutory provision for his filing a copy of his return in the town clerk's office is for his relief, as to keeping possession once taken; substituting public notice of the attachment in certain cases for visible retention of possession. His special property in the goods attached still continues, with the right to resume actual possession at any time. Wentworth v. Sawyer, 76 Me. 434. In this case the goods were attached when the officer took possession of them by virtue of the writ. The plaintiff thereby gained a lien on them, and the court acquired jurisdiction over them. If the officer afterward lost possession of them, and thereby deprived the plaintiff of his lien, the plaintiff would have instead thereof a right of action against the officer. The question cannot be determined here, since the officer is a party to it, and is entitled to be heard upon it. He has made return upon the writ that he has attached thereon goods of the defendant found within the state. In this action it must be assumed that he still has them under attachment, ready to respond to the judgment of the court. Hence this action must proceed to judgment if the statutory notice has been given. Nelson v. Omaley, 6 Me. 218. If judgment be for the...