Roy v. Union Mercantile Co.

• Decision Date: 27 April 1891
• Citation: 26 P. 996,3 Wyo. 417
• Parties: ROY v. UNION MERCANTILE CO
• Court: Wyoming Supreme Court

26 P. 996

3 Wyo. 417

ROY v. UNION MERCANTILE CO

Supreme Court of Wyoming

April 27, 1891

Error from district court, Laramie county.

Action by the Union Mercantile Company against Horace A. Roy. Plaintiff had judgment, and defendant brings error. Affirmed.

Judgment affirmed.

J. C Thompson and J. F. Rowan, for plaintiff in error.

Lacey &amp Van Devanter, for defendant in error.

CONAWAY J. GROESBECK, C. J., and MERRELL, J., concur.

OPINION

CONAWAY, J.

This cause, which is brought in this court by petition in error by Horace A. Roy, who was defendant below, was begun by defendant in error in the district court of the first judicial district for Laramie county, November 18, 1886. The petition was filed and summons issued on that day. An affidavit for attachment and the proper undertaking were filed at the same time. The order of attachment was issued December 11th following. This is termed an "alias order," but it is the only one in the record, and is admitted to be the only one served. It was served December 15, 1886. On the 8th of October previous, plaintiff in error had made an assignment of all his property not exempt from execution, ostensibly for the benefit of his creditors, and had filed inventories of such property assigned on November 10 and 11, 1886, including the property seized by virtue of the attachment. He retained possession of the property assigned until it was so seized, which was on December 15, 1886. Plaintiff in error appeared in the court below, but did not contest the causes of action alleged against him in the petition of plaintiff, the defendant in error here. He traversed those allegations of the affidavit for attachment which called for and authorized the issuance of the writ, and moved the dissolution of the attachment on the ground that those allegations were untrue. Evidence was introduced, and a trial had, upon this issue. This motion was overruled, and he excepted. He objected to taxing the costs of the attachment proceedings as part of the costs of the cause, and to including them in the judgment. This motion was overruled, and he excepted. These are the matters complained of in the petition in error.

An objection claimed to be jurisdictional is raised in this court for the first time. It is based upon an alleged defect of form in the verification of the affidavit for attachment, and it is claimed, in one of the briefs of counsel, with some citations of authorities, that it is fatal to the jurisdiction in the attachment proceedings. This is followed by numerous citations of authorities in an additional brief, to the point that errors or omissions which render the judgment void may be taken advantage of at any stage of the proceedings, and that questions which go to the jurisdiction are never waived. In this way, an alleged defect in the jurisdictional basis of the ancillary attachment proceedings seems to be perverted into an attack upon the jurisdiction of the court to hear and determine the cause to which these proceedings were appurtenant. As to this, it is sufficient to say that the jurisdiction of the court to render judgment in this cause in no manner depended upon the attachment proceedings. The court had jurisdiction of the subject-matter beyond question. The record shows that jurisdiction of the person of the plaintiff in error was obtained by personal service of a summons upon him, and this was followed by his appearance in the court below, and such proceedings there as to amount to a submission to the jurisdiction. It may well be held that an appearance by a party to object to the jurisdiction, to move the court to dismiss the action for want of jurisdiction, or to move the court for any action, or ask the court for any relief, not involving the exercise of jurisdiction, but rather a refusal to exercise it, would not be an acknowledgment of the jurisdiction of the court or a submission to it. On the other hand, an appearance and moving the court for any action, or asking for any relief involving the exercise of jurisdiction, is such a submission and acknowledgment. Such was the course of the plaintiff in error in the court below. He appeared, but raised no question of jurisdiction. He made no defense to the causes of action alleged against him in the petition. But he did deny such allegations of the affidavit for attachment as authorized the issuance of the writ, and introduced evidence and had a trial upon the issues thus presented. He was then in court for all purposes. Waples, Attachm. p. 393. After this, it seems, it was too late to raise any question as to the sufficiency of the affidavit in any respect, or even as to its existence. He was no longer in position to question the validity of the attachment or the resulting lien, whatever might have been the case as to others. Drake, Attachm. § 112, and cases there cited. Much less can he now be heard to urge such matters as being fatal to the jurisdiction of the court, or as rendering the judgment void. If he had raised the objection in time, the utmost it could have accomplished, in any event, would have been the dissolution of the attachment. This would not have affected in any degree the jurisdiction of the court in the cause, to which the attachment proceeding was a mere incident. A tree is not felled by sawing off a limb. All that was really necessary to say upon this point is that the court had jurisdiction of the subject-matter of this cause by law, and of the person of the plaintiff in error by the personal service of the summons upon him. In deference to the labored and ingenious arguments of counsel, we have discussed the matter, perhaps, at undue length.

But one other point is urged on behalf of plaintiff in error. It is insisted that the action of the court below in overruling the motion of plaintiff in error to dissolve the attachment, and consequently allowing the costs of the attachment to be taxed as part of the costs of the action, and in refusing a rehearing and a new trial upon these points, is not sustained by the evidence. It would seem that the state of the record is such as to present two insuperable objections to the consideration of this point: First, the bill of exceptions does not seem to have been legally allowed; and, second, it does not affirmatively show that it contains all the evidence.

1. As to the allowance of the bill. The law in force at the time of this trial, and until changed by the Session Laws of 1890 required that the party excepting should reduce his exception to writing, and present it to the court for allowance. It further provided that time might be given to reduce the exception to writing, but not beyond the first day of the next succeeding term of court. Then, if true, it was the duty of a majority of the judges composing the court, or of the court or judge before whom the trial was had, to allow and sign it. Under this law, a majority of the supreme court of the territory of Wyoming had held that...