Porter v. Duke

• Decision Date: 02 October 1928
• Docket Number: Civil 2729
• Citation: 34 Ariz. 217,270 P. 625
• Parties: MRS. JOHN H. PORTER, Appellant, v. B. Y. DUKE, Appellee
• Court: Arizona Supreme Court

270 P. 625

34 Ariz. 217

MRS. JOHN H. PORTER, Appellant, v. B. Y. DUKE, Appellee

Civil No. 2729

Supreme Court of Arizona

October 2, 1928

APPEAL from a judgment of the Superior Court of the County of Apache. A. S. Gibbons, Judge. Judgment affirmed.

Mr. W E. Ferguson, for Appellant.

Mr Isaac Barth, and Mr. Dodd L. Greer, for Appellee.

OPINION

LOCKWOOD, J.

On the twenty-fourth day of March, 1927, B. Y. Duke, hereinafter called plaintiff, filed his complaint in the superior court of Apache county, against Mrs. John H. Porter, hereinafter called defendant, for damages alleged to have been received by plaintiff through the negligent driving of an automobile owned by defendant. A writ of attachment was sued out on the same day, but was never served, and was quashed on motion of plaintiff on the first day of April. On the thirty-first day of March plaintiff filed an amended complaint, in which the name of defendant was set forth as "Helen Porter otherwise known as Mrs. John Porter." A writ of attachment was taken out April 1st, the statutory affidavit in support thereof being made by Dodd l. Greer as attorney for plaintiff, and delivered to the sheriff for service. By virtue of said writ, the sheriff on the same day executed it by taking into his possession property described in his return as "one Packard touring car, Colorado license number 27, together with all its accessories, . . . and belonging to the defendant Louise C. Porter, otherwise known as Mrs. John Porter."

On the same day attorneys for plaintiff moved for leave to amend the complaint, affidavit, and writ of attachment by striking out the name of "Helen Porter" wherever it appeared, and writing in place thereof the name "Louise C. Porter," which motion was by the court granted as of that date. On the 5th of April, Dodd L. Greer, as attorney for plaintiff, moved for an order authorizing service by publication upon the defendant, Louise C. Porter, otherwise known as Mrs. John H. Porter. This motion was supported by an affidavit of Dodd L. Greer as attorney for plaintiff to the effect that, "to affiant's best information and belief, the defendant Louise C. Porter, otherwise known as Mrs. John H. Porter, is a nonresident of the state of Arizona, and that her last known address was Coronado Hotel, San Diego, California," and an order for service by publication was duly made, and the summons published as provided by the statute. Defendant then filed a petition for removal of the cause to the federal court, to which petition plaintiff demurred, and the demurrer was sustained and the petition for removal was denied.

Defendant failed to answer the complaint within the time required by statute, and on the eleventh day of June a default was entered. On the same day the sheriff made a return on the writ of attachment showing the attachment was made as above set forth on the first day of April. The court then proceeded to hear evidence on the merits and rendered judgment against defendant in the sum of $4,000, according to the prayer of the complaint, and ordered a foreclosure of the attachment on the property attached. Defendant has appealed from the judgment, and set up in support of her appeal seven assignments of error, all of which go to the jurisdiction of the court and not to the merits of the case. We will discuss these assignments as seems advisable.

The first is that the court erred in making an order of publication of summons against Louise C. Porter, sometimes known as Mrs. John H. Porter, when the action had been prosecuted previously to the order for publication against Mrs. John H. Porter, sometimes known as Helen Porter. It appears from the abstract of record that before the order for publication was made and summons issued thereon, by leave of the court the complaint then on file, together with the affidavit and writ of attachment theretofore issued, had been amended by substituting the name of "Louise C. Porter" for that of "Helen Porter." Paragraph 426, Revised Statutes of Arizona of 1913, Civil Code, reads as follows:

"426. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly."

Plaintiff therefore had the right to amend the pleadings as he did. Nor do we think it necessary that either the petition for the change in name or the order of the court thereon needed to show the reason for the amendment. It will be presumed that the statutory reason existed in the absence of evidence to the contrary.

The second assignment of error is that the court erred in making the order for publication of summons when at that time no return of the sheriff on the writ of attachment was before it. The theory of the defendant is that the court has no jurisdiction to order a publication of summons in a case of this nature until after the attachment is made, and that the sheriff's return on the writ is the only evidence which the court can consider in determining whether or not an attachment does exist; that since the return of the sheriff was not made until June 11th, the court on April 5th, when the order for publication of summons was made, could have no legal knowledge as to the attachment, and therefore had nothing upon which to base its order. As we shall show hereafter, an attachment made any time before judgment confers jurisdiction, but even assuming that the court could not order publication of summons until after the attachment had been made, the jurisdiction depended on the fact of the attachment, and not upon the proof thereof. Whenever the date of the attachment becomes a question in issue, it may be true that the officer's return is the only method of proving the date, but that return, when it is offered in evidence, establishes the jurisdiction as of the date it is shown the attachment was made, and not as of the date the return was made by the sheriff. It was not necessary to prove the jurisdiction until the case was before the court for determination, and at that time the return of the sheriff was on file and showed that the attachment was made before the order for the publication of summons.

The third assignment is that the affidavit for attachment was insufficient. It is claimed that the affidavit does not show the amount of damages claimed in the action, nor why it was made by plaintiff's attorney instead of by plaintiff in person. Attachment is a statutory proceeding, and is governed by the provisions of the statute. The party suing out a writ of attachment may not do less than the statute requires, but need not do more. Paragraph 1393, Revised Statutes of Arizona of 1913, Civil Code, reads in part as follows:

"1393. The plaintiff at the time of filing his complaint, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as in this chapter provided, in the following cases: . . .

"(2) When any suit be pending for damages, and the defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending for the purpose of defeating the collection of the judgment."

Paragraph 1394, so far as it applies to the present action, reads as follows:

"1394. The clerk of the court or justice of the peace must issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, showing: . . .

"(4) That an action is pending between the parties, and that the defendant is about to remove his property beyond the jurisdiction of the court to avoid payment of the judgment; and,

"(5) That the attachment is not sought for a wrongful or malicious purpose, and that the action is not prosecuted to hinder or delay any creditor of the defendant."

It appears from these paragraphs that an attachment may issue when a suit is pending for damages and the defendant is about to remove his property from the jurisdiction of the court for the purpose of defeating the judgment, and that the statute only requires the affidavit to show these facts, and that it may be made either by the party or on his behalf. There is no requirement of a showing as to why some other person than the party makes the affidavit. If it need not be made by plaintiff in person, his attorney is obviously a proper person to make it. The affidavit was sufficient in form and made by a person authorized under the statute to make it. This covers also the fifth assignment of error.

The fourth assignment is that the court erred in issuing its order for publication of summons without a sufficient affidavit in support of the motion. The objection is that the affidavit was made on information and belief, and not as a positive fact, and it is urged that this is insufficient under the statute. Paragraph 447, Revised Statutes of Arizona of 1913, Civil Code, provides as follows:

"When any party to the suit, his agent or attorney, shall make affidavit at the time of instituting the suit or at any time during its progress that the defendant is a nonresident of the state, . . . " the summons may be served by publication.

The weight of authority is to the effect that an affidavit for publication based on information and belief, which does not state the source of the information, is insufficient. Turnage v. Fisk, 22 Ark. 286; Vanpelt v. Hutchinson, 114 Ill. 435, 2 N.E. 491; Feikert v. Wilson, 38 Minn. 341 37 N.W. 585; Hafern v. Davis, 10 Wis. 501. There is, however, respectable and well-reasoned authority to the contrary. Leigh v. Green, 62 Neb. 344, 89 Am. St. Rep. 751, 86 N.W. 1093; Colton v. Rupert, 60 Mich. 318, ...