Turner v. Franklin

• Decision Date: 31 March 1906
• Docket Number: Civil 938
• Citation: 85 P. 1070,10 Ariz. 188
• Parties: THOMAS J. TURNER, and THE UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Plaintiffs in Error, v. O. K. FRANKLIN, Defendant in Error
• Court: Arizona Supreme Court

85 P. 1070

10 Ariz. 188

THOMAS J. TURNER, and THE UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Plaintiffs in Error, v. O. K. FRANKLIN, Defendant in Error

Civil No. 938

Supreme Court of Arizona

March 31, 1906

ERROR to the District Court of the Second Judicial District in and for the County of Santa Cruz.Eugene A. Tucker, Judge.From a judgment in favor of plaintiff, defendants bring error.Affirmed.

The facts are stated in the opinion.

Thomas Armstrong, Jr., for Plaintiff in Error.

There was not a sufficient service upon the Surety Company under paragraph 414 of the Revised Statutes of 1901, and the court acquired no jurisdiction over it.City Council of Alexandria v. Fairfax,95 U.S. 774, 24 L.Ed. 583;Southern Bldg. & Loan Assoc. v. Hallum,59 Ark. 58328 S.W. 420;City of Watertown v. Robinson,69 Wis 230-233, 34 N.W. 139;Continental Ins. Co. v Mansfield,45 Miss. 311;Gamasche v. Smythe,60 Mo.App. 161;Lonkey v. Keyes Silver M. Co.,21 Nev 312, 17 L.R.A. 351, 31 P. 57.And the judgment should be reversed for want of service under the ruling in National Metals Co. v. Greene Con. Copper Co., 9 Ariz. 192, 80 P. 397-399.

Selim M. Franklin, and S. L. Kingan, for Defendant in Error.

The appearance of defendant surety company for the purpose of urging a motion for a new trial and of excepting to the ruling denying the same, was a general appearance and an admission of the jurisdiction of the court, and a waiver of any defect in the summons, its service, or return.Defendant cannot, on the one hand, appear to ask for a new trial, and on the other hand, when the new trial is denied, appeal on the ground that it had not submitted itself to the jurisdiction of the court.Mayer v. Mayer,27 Or. 133, 39 P. 1002;Burdette v. Corgan,26 Kan. 104;Kaw Valley L. Assoc. v. Lemke,40 Kan. 142, 19 P. 337;Gilbert-Arnold L. Co. v. O'Hare,93 Wis. 194, 67 N.W. 38;Alderson v. White,32 Wis. 308;Kingsley v. Great Northern Ry. Co.,91 Wis. 380, 64 N.W. 1036;Herndon v. Crawford,41 Tex. 267;Belknap v. Charlton,25 Or. 41, 34 P. 758;5 Cyc. 504, 509;2 Ency. of Plead. & Prac., p. 597;Teagarden v. Board of Commerce, 49 Kan. 146, 30 P. 171;Rev. Stats. 1901, par. 1340.

Under paragraph 414,title 8, of the Revised Statutes of 1901, the service upon J. J. Sweeney, as agent of the surety company, and the return thereon, was good, under the ruling in the following cases: National Metal Co. v. Greene Cons. Copper Co.,9 Ariz. 192, 80 P. 397;St. Clair v. Cox,106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222;Henning v. Planters Ins. Co.,28 F. 440;18 Ency. of Plead. & Prac., p. 927, and authorities there cited;Hagerman v. Empire State Co.,97 Pa. St. 534;Fulton v. Commercial Trav. Mut. Assoc.,172 Pa. St. 117, 33 A. 324;Davis v. Jacksonville S. Line,126 Mo. 69, 28 S.W. 965;Keener v. Eagle Lake etc. Co.,110 Cal. 627, 43 P. 14;Talbot v. Minneapolis etc. R. Co., 82 Mich. 66, 45 N.W. 1113.

OPINION

DOAN, J.

-- This cause is brought to this court on a writ of error from the district court of Santa Cruz County by the plaintiffs in error, who were the defendants in that court.An action was brought by the defendant in error, O. K. Franklin, against the plaintiffs in error, Thomas J. Turner, as sheriff of Santa Cruz County, and The United States Fidelity and Guaranty Company, as surety on his official bond, to recover damages for the alleged loss sustained through the negligence of the deputy of the defendant sheriff in failing to properly levy a writ of attachment in a suit by the said Franklin against one John Dessart.Personal service of summons and complaint was had on Sheriff Turner, who appeared and answered.The summons for the guaranty company was served on J. J. Sweeney, its agent, and the sufficiency of the officer's return of that service is contested by the plaintiff in error.The guaranty company made no appearance, and judgment was taken against it by default.

It appeared upon the trial that the writ of attachment in Franklin's action against Dessart was duly issued on the thirteenth day of January, 1904, and was delivered by the clerk of the court to Franklin's attorney, who delivered the same to the sheriff's clerk, together with a copy of the said writ for filing in the recorder's office, and the directions as to the particular property upon which the plaintiff, Franklin, desired to have it levied, and was by the sheriff's clerk delivered to a deputy sheriff for levy.The writ was returned on the following day, January 14th, with the proper return of service indorsed thereon; but the copy of the writ that is required by our statute to be filed in the recorder's office, with a copy of the sheriff's return indorsed thereon, in order to constitute a valid levy, was found to have been filed in the recorder's office on the 14th of January without any copy of the sheriff's return of service indorsed thereon, but with a memorandum attached thereto giving simply the number of the lot and block of the real estate on which the levy was attempted, without any designation of the town or county wherein located.On the 15th of January, 1905, Dessart conveyed the property to a purchaser for value, and upon the trial of Franklin's case, judgment was rendered against Dessart, but the attempted levy of the attachment was found to be so defective as to create no lien on the real estate.Dessart, it appears, after the transfer of the property was insolvent, and has remained so until this time, and the plaintiff, Franklin, has failed thus far to recover anything by virtue of the judgment.Upon the trial of the cause against the plaintiff in error, the court rendered judgment on April 19, 1905, against the defendants for the full amount demanded, -- to wit, four thousand dollars, -- with interest and costs, making a total of $4,455.65.A motion for a new trial was presented by the defendant Turner on April 22, 1905, and denied, but no appearance was entered for the guaranty company, and the motion for a new trial was made only on behalf of the defendant Turner.Notice of appeal was given by the defendant Turner on April 22, 1905, upon the denial of the motion for a new trial, but no appeal was perfected.On the 20th of June a petition for a writ of error was filed by counsel for plaintiffs in error.Summons was issued thereon, and on the twenty-sixth day of June a supersedeas and cost-bond was filed in the case by the guaranty company, conditioned upon the said guaranty company prosecuting its said writ of error with effect, and performing any judgment and paying any costs that might be awarded against it, together with the accruing costs, but no bond was filed by Turner or by any one on his behalf.By reason of there being no bond filed by Turner or on his behalf, this court does not obtain any jurisdiction over him or his interests in the case.The determination of this question will therefore be had relative to the rights and interests of the guaranty company alone.

The first assignment of error is based upon the overruling of the defendant Turner's general demurrer to the complaint.The next four assignments are based upon the insufficiency of the testimony to sustain the findings...