Sannoner v. Jacobson

• Decision Date: 01 November 1885
• Parties: SANNONER v. JACOBSON <I>et al.</I><SMALL><SUP>2</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 458

14 S.W. 458

SANNONER v. JACOBSON et al.²

Supreme Court of Arkansas.

November Term, 1885.

Appeal from circuit court, Perry county; J. B. WOOD, Judge.

U. M. & G. B. Rose and E. B. Henry, for appellants. Cohn & Cohn and Carroll Armstrong, for appellees.

COCKRILL, C. J.

These cases are submitted together. It is conceded they are alike, and that the decision of one will control all. The appeals grew out of contests between attaching creditors of a common debtor, for priority of attachment liens. J. Jacobson & Co. were indebted to each of the appellants, and, acting through the same attorney, these creditors severally sued out attachments, and caused them to be levied simultaneously upon the property of Jacobson & Co. The proceedings in each case being similar to those in Sannoner's action, it will be sufficient to consider his case alone. The only attempt at a complaint or affidavit filed by him is the following:

"In Perry circuit court. J. H. Sannoner, Plaintiff, v. J. Jacobson and D. Herstein, Partners, under the firm name and style of Jacobson & Herstein and J. Jacobson & Co. Affidavit for attachment. The plaintiff, J. H. Sannoner, states and avers that the defendants, J. Jacobson and D. Herstein, are indebted to him for money advanced to them to carry on their business; that said claim is just, and plaintiff believes he ought to recover thereon the sum of two thousand five hundred and twenty-eight and 12-100th dollars; that the defendants, J. Jacobson and D. Herstein, have sold and disposed of their property, and are selling and disposing of their property, with the fraudulent intent to cheat, hinder, and delay their creditors; and affiant, therefore, prays an attachment against their property. HENRY, for Plaintiff.

"Eugene B. Henry avers that the plaintiff, J. H. Sannoner, is now absent from Perry county; that he is the attorney of said J. H. Sannoner, and he verily believes the facts set forth in the foregoing affidavit to be true. EUGENE B. HENRY.

"Sworn to before me, this 31st day of December, 1884. J. A. McBATH, Clerk."

An attachment bond, in regular form, was filed, and thereupon an order of attachment and summons in one writ was issued. The defendants were personally served with process, and their stock of merchandise was seized and held by the sheriff under the writs. Then, upon the application of Sannoner and his co-attachers, an order was made for the sale of the attached property. Before there was any attempt to distribute the proceeds of sale, H. Aronson intervened, and filed a complaint setting up that he had an attachment against the defendants, subsequent to that of the plaintiff, and levied upon the same property, and asked that the plaintiff's attachment be discharged, because (1) no complaint had been filed before the issue of the attachment; (2) no proper affidavit for attachment had been filed; (3) plaintiff's attachment had been issued upon fictitious claims, and in collusion with the defendants, with the intent of defeating the intervenor's claim. Similar interventions were made by Berry, Jack & Co. and Menken Bros. No attempt appears to have been made to sustain the last ground alleged in the complaint, but the court found from an inspection of the record, as the judgment entry recites, that no complaint having been filed, nor a sufficient affidavit made, before the order of attachment issued, the plaintiff had no action pending; and his attachment was accordingly discharged, and the fund arising from the sale was ordered to be distributed among the second attachers. The court also refused to entertain a motion for judgment in personam against the defendants, upon the theory that the plaintiff had no standing in court, and was entitled to no relief, and the proceeding was dismissed. From this judgment an appeal was prayed.

The effort of the subsequent attaching creditors to contest the validity of the appellant's attachments is based upon the following provisions of the statute: "Any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof, * * * present his complaint, verified by oath, to the court, disputing the validity of the attachment, or stating a claim to the property, or an interest in or a lien on it under any other attachment or otherwise, and setting forth the facts on which such claim is founded, and his claim shall be investigated." Section 356, Mansf. Dig. "The court may hear the proof, or may order a reference to a commissioner, or may impanel a jury to inquire into the facts. If it is found that the claimant has a title to or a lien on or any interest in such property, the court shall make such order as may be necessary to protect his rights. The costs of this proceeding shall be paid by either party, at the discretion of the court." Id. § 358. The mode of procedure to be pursued by one claiming a lien or interest which does not give the right of possession is not definitely pointed out by the statute. One who claims title to attached property is permitted to intervene in the first attachment suit, and there contest his rights with the plaintiff in that proceeding. Mansf. Dig. § 390 et seq.; Neal v. Newland, 4 Ark. 459; Hershy v. Institute, 15 Ark. 128; Bloom v. McGehee, 38 Ark. 329. As no distinction is made in the matter of procedure, in the provisions quoted, whether the claimant asserts title to the attached property, or only an interest by way of a subsequent attachment lien, the right of the second attacher to intervene and become a party to the first proceeding follows. The intervening suit is a separate and distinct one, however, and the issues are made between the plaintiffs in the two attachment suits without regard to the common defendant. Cases supra. It is nevertheless a proceeding in the cause in which the disputed attachment is made, and follows it, when transferred to this court by appeal from the final judgment in the case, just as the action of the court on the motion of the defendant to dissolve an attachment does. Holliday v. Cohen, 34 Ark. 718; Baird v. Williams, 19 Pick. 381.

The object of letting the second attacher into the suit of the first is declared, in section 358, supra, to be to enable him to procure "such order as may be necessary to protect his rights." No new right is conferred upon him by the statute, but only a privilege granted of availing himself of the new and expeditious remedy provided for the protection of whatever right he may have acquired by suing out his attachment. It cannot with propriety be contended that the intervenor is let in for the purpose of defending the suit, and disputing the grounds of attachment in lieu of the defendant, although that might be an efficacious method of invalidating the attachment. That would involve the practice in manifold difficulties, and even in legal absurdities, without any nearer approach to substantial justice. Such a practice prevailed at an early day in Massachusetts under a statute expressly conferring upon the intervenor the right to defend for the defendant, whether the latter desired it or not, but it was abolished a long time ago, after condemnation by the courts in severe terms. Baird v. Williams, 19 Pick. supra. The intention to entail like evils upon our practice cannot be found in any of the provisions of the statute, and it would require a clearlyexpressed intention to induce us to conclude that such was the legislative design. An examination of the authorities shows that it is an almost universal rule, where the statutes permit a second attacher to intervene in the suit of the first, to confine the scope of his inquiry to such matters as might be inquired into in a collateral attack upon the attachment proceedings in the same or a different court. The intervenor is treated as a stranger to the attachment proceeding as much so as though he had gone into a court of equity to attack the proceeding upon some established equitable principle. Darby v. Shannon, 19 S. C. 531. It is only a matter of convenience that he is let into the suit of the first attacher As Mr. Freeman appropriately says: "Every litigant, if an adult, is presumed to understand his own interests, and to be fully competent to protect them in the courts. He has the right to waive all irregularities in proceedings by which he is affected, and is entitled to exclusively decide upon the propriety of such waiver. To allow disinterested third persons to interpose in his behalf, and to undertake the management of his business, according to their judgment, would create intolerable confusion and annoyance, and produce no desirable result." Freem. Judgm. § 91. Following this general principle, the authorities, with common consent, assert that one attaching creditor, unless specially authorized by statute, cannot intervene in the suit of another to defeat it for irregularities in the proceedings against the attaching debtor. Drake, Attachm. §§ 262, 273, et seq.; Wap. Attachm. 476, 477, and cases cited. But the decisions are by no means harmonious in drawing the distinction between imperfections which are irregularities or errors in procedure only, and those which render the proceedings void. The former, though erroneous, and capable of avoiding the process in a proper proceeding for that purpose, may be cured by the liberality of the statute of amendments, and so by relation the proceedings may be made whole from the first. The latter render the proceedings, even after judgment, open to attack by any one whose interest is injuriously affected. If we continue to treat the intervening attacher as a stranger to the first attacher's suit, except for the purpose of facilitating the adjudication of his rights, and treat his attack upon the proceedings as collateral, we avoid some of the difficulties that the courts have found in this class of cases.

Guided by this general rule, our inquiry is directed to the defects in the proceedings in the...