Renner v. J. Gruman Steel Co.

• Decision Date: 09 December 1966
• Docket Number: No. 8253,8253
• Citation: 147 N.W.2d 663
• Parties: Isadore A. RENNER, Plaintiff and Respondent, v. J. GRUMAN STEEL COMPANY, Walter Miltenberger, and New Amsterdam CasualtyCompany, a Corporation, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 663

147 N.W.2d 663

Isadore A. RENNER, Plaintiff and Respondent, v. J. GRUMAN STEEL COMPANY, Walter Miltenberger, and New Amsterdam CasualtyCompany, a Corporation Defendants and Appellants.

Civ. No. 8253.

Supreme Court of North Dakota.

Dec. 9, 1966.

Rehearing Denied Jan. 21, 1967.

Syllabus by the Court

1. In a proceeding by attachment to aid in collecting a debt, there must be a strict compliance with the applicable statutes. Where statutes are not complied with and the sheriff fails to make and file an inventory with the clerk of court within twenty days after seizing and attaching property, the proceeding is void and may be attacked in a collateral proceeding.

2. Where an attachment fails because the statute requiring the sheriff to make and file an inventory within twenty days was not complied with, the entire proceeding becomes void and a judgment entered in such proceeding is void.

3. Generally, the doing of a single or isolated transaction would not be considered doing business in this State within our statute providing for service of process on a foreign corporation doing business in the State without a certificate of authority. But whenever a claim shall arise out of such transaction, service of process may be made on such corporation by serving any person who shall be found within the State acting as an agent of, or doing business for, such corporation. Such service may also be made by mailing a copy of such process to the defendant corporation by registered or certified mail at its last postoffice address.

4. The bringing of an action in North Dakota for the collection of a debt does not constitute doing business in this State within the statutory provision allowing service of process on a foreign corporation doing business in the State without a certificate of authority.

5. Our statute which provides that if a sheriff to whom a writ of execution or attachment is delivered neglects or refuses to levy upon any property of the party charged in the writ, which is to be levied upon, he is liable to the creditor for the value of the property, does not make the sheriff liable to the owner of the property levied upon for failing to make such levy or attachment. Such failure to levy upon the debtor's property would injure and damage the creditor, but would not injure the debtor whose property he failed to levy upon or attach.

6. A sheriff who executes an order or judgment, valid on its face, which requires him to sell certain property involved in the suit, cannot be held liable for anything he does which is necessary and proper in carrying out such order of the court.

7. A sheriff who executes the order or judgment of the court, valid on its face, is protected thereby regardless of the subsequent action of a court in holding such order or judgment invalid. The right of the sheriff to protection in proper acts done in execution of an order or judgment, valid on its face, does not depend upon the ultimate success in the action of the party at whose instance the process was issued.

8. A sheriff is protected and justified for necessary acts done in executing the process and orders of a court having jurisdiction of the subject-matter, when the process is regular on its face.

9. Where a plaintiff in an attachment proceeding furnishes an undertaking, as provided by Section 32--08--06, North Dakota Century Code, the surety on such undertaking agrees to pay all costs and damages which the defendant in the proceeding may sustain, not exceeding the sum named in the undertaking, if such attachment is set aside or found to be invalid by order of the court. The attachment defendant may bring an action upon such undertaking without first obtaining a judgment against the plaintiff in the action in which the undertaking was given.

Greenwood & Swanson, Dickinson, for plaintiff and respondent.

Duffy & Haugland, Devils, Lake, for defendants and appellants J. Gruman Steel Co. and New Amsterdam Casualty Co.

Ziegler & Butz, Rugby, for defendant and appellant Walter Miltenberger.

STRUTZ, Judge (On reassignment).

In September 1960, J. Gruman Steel Company commenced an action in the district court of Pierce County against Isadore A. Renner, a resident of the State of Montana, for the sum of $1,709.70 for goods, wares, and merchandise which the corporation had sold to Renner. Since the debtor was not a resident of the State of North Dakota, personal service could not be made in this State. However, Renner had certain personal property in Rugby, Pierce County, and a warrant of attachment was secured from the clerk of the district court of that county, directed to the sheriff, commanding the sheriff to attach such property. Pursuant to such writ of attachment, the chief of police of Rugby, acting in the absence of the sheriff, on September 7, 1960, seized the property of the said Renner found in Rugby. It appears that the sheriff, who was absent from his office when the writ of attachment was delivered, did not return to work until some weeks later due to illness. The chief of police, acting for the sheriff during such absence, put a padlock on Renner's property but did nothing further. The sheriff returned to his office in the latter part of October 1960 and, on October 25, made and filed an inventory in the attachment proceeding.

Renner did not answer in such action, but his attorney attempted to make a settlement of his account by offering J. Gruman Steel Company a chattel mortgage on the property which it had attached, together with a note which was to be due the following March 29. J. Gruman Steel Company offered to compromise the matter, but a settlement never was reached.

Thereupon J. Gruman Steel Company served on Renner a notice of motion for judgment. Renner countered with a notice of special appearance, contending that the court did not have jurisdiction to enter any judgment against him because a copy of the summons and complaint had not been mailed to him at his Montana residence within ten days after the first publication of summons, as required by statute. On hearing the notice of motion for judgment, the court determined that it did have jurisdiction, and judgment was ordered for J. Gruman Steel Company and against Renner for $1,709.70, and the property which had been attached, or so much as was necessary to set aside such judgment, and costs, was ordered sold by the sheriff. This property was sold by the sheriff on January 12, 1961. The notice of entry of judgment and the judgment were served upon Renner at his residence in Montana, but no appeal was ever taken from such judgment.

Thereafter, when time for appeal in the former action had expired, the present action was commenced by Renner against J. Gruman Steel Company and the New Amsterdam Casualty Company, which had furnished the attachment undertaking, and against Walter Miltenberger, the sheriff of Pierce County, for the conversion of Renner's property by selling the same under the order and judgment of the district court, which Renner alleges to be void. J. Gruman Steel Company made a special appearance in the action started by Renner, claiming that, as a Minnesota corporation, it was not properly served in North Dakota when service was attempted by serving its attorneys in the attachment proceeding and by mailing a copy of the summons and complaint to its Minnesota address by ordinary mail. In its special appearance J. Gruman Steel Company further sets out that it had commenced the prior action for money due from Renner; that service in that action could not be made on Renner personally because he was not a resident of North Dakota, but that service was made by attaching certain personal property within this State, and by thereafter causing an affidavit of publication to be filed and summons to be published, with copy of such summons mailed to the said Renner at his Montana address, as provided by law; that judgment had been entered against Renner and, pursuant to such judgment, his property had been sold by the sheriff.

Renner, on the other hand, contends that the attachment of his property in the prior action was void because the sheriff did not file an inventory within twenty days after the property had been attached, as required by Section 32--08--09, North Dakota Century Code, and that the sale of his property therefore was made under a void judgment. Renner demanded damages for wrongful sale of such personal property.

This case came on for trial before the Honorable W. C. Lynch, one of the judges of the Fourth Judicial District, sitting at the written request of the Honorable Douglas B. Heen, one of the judges of the Second Judicial District.

The defendant J. Gruman Steel Company having made a special appearance for the purpose of objecting to the jurisdiction of the court in the action brought by Renner, the trial court held that it did have jurisdiction over such defendant. After hearing, it ordered that judgment be entered against the defendant J. Gruman Steel Company, a foreign corporation, and the defendant Walter Miltenberger, as sheriff of Pierce County, and the defendant New Amsterdam Casualty Company, which had furnished the attachment bond in the prior action. Such judgment was ordered entered in favor of the plaintiff, Renner, in the sum of $6,861.50 and costs, but the judgment against the defendant New Amsterdam Casualty Company was for only the sum of $1,709.70, the amount of its attachment bond.

From the judgment so entered on such order, the defendants all have appealed to this court and have demanded a trial de novo.

The first issue to be determined on this appeal is whether the sheriff's sale of the plaintiff's personal property, under the judgment rendered by the court in the prior action against Renner, constituted a conversion of that property. If that sale was valid, the plaintiff, Renner, clearly has no cause of action against the defendant J. Gruman Steel Company or the sheriff or the bonding...