Wescott v. Archer

• Decision Date: 03 March 1882
• Parties: WESCOTT v. ARCHER.
• Court: Nebraska Supreme Court

11 N.W. 577

12 Neb. 345

WESCOTT v. ARCHER.

Supreme Court of Nebraska

March 3, 1882

LAKE C. J., (dissenting. )^[*]

Upon the main branch of this case I find myself unable to concur in the foregoing opinion. The conclusion therein arrived at that the judgment is void, for the simple reason that the published notice of the bringing of the suit was "defective" in the omission of a "description of the property levied upon," is to my mind a novel one and unsupported by any adjudged case under a statute similar to our own to which our attention has been called. It is, as I think, unfounded in reason, and does violence not only to the plain language of our attachment law, but also to the previous ruling of this court upon precisely the same question.

The infirmity in the position taken by the majority of the court is radical. It lies in the unwarranted assumption that the notice in question was what gave the court jurisdiction over the attached property. To show that this assumption is not sanctioned, I will refer to some of the provisions of our attachment law bearing upon the question. And first, section 198 of the Civil Code provides that "the plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated," etc. One of the grounds stated is "when the defendant, or one of several defendants, is * * * a non-resident of this state."

Section 199 provides that "an order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing--First, the nature of the plaintiff’s claim; second, that it is just; third, the amount which the affiant believes the plaintiff ought to recover; fourth, the existence of some one of the grounds enumerated in the preceding section."

Section 205 is mandatory to the sheriff, who, upon receiving the order of attachment, must serve it "without delay" by a seizure of the property, when that is possible. Where the property attached is real estate, he must "leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order." But if it be personal property, and accessible, "he shall take the same into his custody, and hold it subject to the order of the court." This done, the property so seized is in custodia legis; for section 212, in express terms, provides that "an order of attachment binds the property attached from the time of service; " and section 218, that "the court shall make proper orders for the preservation of the property during the pendency of the suit," even to the extent of directing its sale, "when because of its perishable nature, or the cost of keeping it, a sale will be for the benefit of the parties."

Now, by the light of these provisions, is it not manifest that the jurisdiction of a court over attached property, under our statute, depends, not upon a notice to the defendant of the pendency of the action by summons or by publication, but upon the fact of a proper affidavit having been filed for the issuing of the order under which it was seized. Can property be so bound, and subjected to such orders, and still the court be, as my brethren hold, without jurisdiction over it? Can the court, by an interlocutory order, direct the sale of attached property, for any reason, without the assent of the owner, whereby the title may be transferred from him to the purchaser, and this without possessing any jurisdiction over it? Surely not. If the right to exercise such powers over the property of a debtor be not jurisdiction, what is it? Webster’s definition of the word "jurisdiction," when used with reference to judicial power, is "the right of administering justice through the laws, by the means which the laws have provided for that purpose." It seems to me that the authority given to courts over attached property from the time of its seizure, independently of whether jurisdiction over the person of the defendant has been acquired or not, falls clearly within this definition.

The majority of the court seem to have forgotten that in an attachment case the jurisdiction may be twofold--that...