Winchell v. McKenzie

• Decision Date: 16 December 1892
• Citation: 53 N.W. 975,35 Neb. 813
• Parties: WINCHELL, SHERIFF, v. MCKENZIE ET AL.
• Court: Nebraska Supreme Court

35 Neb. 813

53 N.W. 975

WINCHELL, SHERIFF,

v.MCKENZIE ET AL.

Supreme Court of Nebraska.

Dec. 16, 1892.

Syllabus by the Court.

1. A county judge has jurisdiction, under section 238, Code Civil Proc., to grant an attachment on a claim not due, upon the proper affidavit being made and filed, showing the existence of at least one of the statutory grounds or causes for issuing an attachment on a debt before due.

2. No written application for an order allowing an attachment other than the filing of the proper affidavit is necessary.

3. When the county judge issues a writ of attachment in a case commenced before him, it is not necessary to the validity of the writ that he should spread upon his docket a formal order allowing the attachment. In such case the issuing of the writ is in itself the granting of the order.

4. The county judge of P. county made an order granting an attachment in an action to be brought in the district court of the county, and signed the same officially, but he failed to attach thereto the seal of the county court, which order was filed with the clerk of the district court, who issued a writ of attachment thereon. Held, that the omission of the seal of the county court did not make the order absolutely void, but an irregularity, which could be taken advantage of only by the defendant in attachment in the proper mode. The question cannot be raised by third parties in a collateral proceeding.

5. When a sheriff, under and by virtue of a writ of attachment, levies upon property found in possession of a stranger to the suit, in an action of replevin therefor by such stranger, the officer, to justify the taking, is required to show that the attachment writ was regularly issued; that is, that the writ is regular on its face, and was issued upon a sufficient affidavit by a court having jurisdiction of the parties and the subject-matter of the action.

6. Where proceedings in attachment are irregular and erroneous, but not void, such errors and irregularities cannot be taken advantage of by third parties in a collateral proceeding.

Error to district court, Perkins county; CHURCH, Judge.

Replevin by John McKenzie and George W. Snyder against Lewis A. Winchell. Plaintiffs had judgment, and defendant brings error. Reversed.Cornish & Robertson, for plaintiff in error.

Saunders & Prime, W. S. Morlan, and John J. Halligan, for defendants in error.

NORVAL, J.

Lewis A. Winchell, the plaintiff in error, was the sheriff of Perkins county. James A. Hatcher and Fred L. Knight were formerly engaged in the mercantile business in the town of Madrid, in said county, under the firm name of Hatcher & Knight, and on the 11th day of June, 1889, they executed and delivered a bill of sale of their stock of goods to John McKenzie and George W. Snyder, defendants in error, who took possession of the goods under said bill of sale. Shortly thereafter two writs of attachment against the firm of Hatcher & Knight--one issued by the clerk of the district court of Perkins county, the other issued out of the county court of said county--were placed in the hands of Lewis A. Winchell, as sheriff, who levied upon said stock of goods by virtue of said writs of attachment. Subsequently defendants in error brought this action in replevin against plaintiff in error to recover said goods. The property was taken under the replevin writ, and the possession thereof delivered to plaintiffs below There was a trial to a jury, which resulted in a verdict and judgment in favor of the plaintiffs.

On the trial in the court below plaintiffs introduced in evidence the bill of sale above mentioned, and evidence tending to prove that they had taken possession of the goods under the bill of sale. The defendant attempted to justify under the two writs of attachment, and to that end he offered in evidence the files and record in a cause in the district court of Perkins county, wherein M. E. Smith & Co. were plaintiffs and Hatcher & Knight were defendants, consisting of the præcipe, summons, with the return of the officer indorsed thereon showing service on defendants, affidavit for attachment, undertaking, order of attachment, appraisement, the order of the county judge of Perkins county allowing a writ of attachment to issue in the action, demurrer of Fred L. Knight to the petition, answer of James A. Hatcher, and the judgment in favor of the plaintiffs in said suit. To the introduction in evidence of said papers and records the plaintiffs objected on the ground that no seal was attached to the order of the county court allowing the writ of attachment; that the court had no jurisdiction to issue the summons for the reason no order of the county judge allowing a writ of attachment on a claim before due to issue in said action was on file with the clerk at the time the summons was issued, and that the judgment was incompetent and immaterial, and the court rendering the same was without jurisdiction; which objections were sustained by the court, and the defendant excepted. Defendant then offered in evidence the docket of the county court of Perkins county, showing the affidavit filed in said court for an order allowing a writ of attachment to issue, and the order of the county judge granting the writ of attachment, to which the plaintiffs objected as incompetent, immaterial, and irrelevant. The objection was sustained, and the defendant excepted. The defendant further offered to prove by the county judge of Perkins county that the order allowing the writ of attachment to issue in said case of M. E. Smith & Co. v. Hatcher & Knight was made by said county judge on the application of the plaintiffs in said action, and that by mistake or oversight the seal of the county court was not attached to said writ, to which plaintiffs objected as before. The objection was sustained, and the defendant excepted. The defendant also offered in evidence the petition, affidavit for attachment, summons and return, writ of attachment and return thereon, appraisement, answers, motion to the jurisdiction of the court, motion to dissolve the attachment, judgment, and docket entries in a cause in the county court of Perkins county wherein Kirkendall, Jones & Co. were plaintiffs and Hatcher & Knight were defendants, to which plaintiffs objected, for the reason no foundation had been laid for their admission; that no application had been made for the writ of attachment, and no order had been made granting the same; and for the further reason the county court has no jurisdiction in that kind of a case, which objections were sustained, and the defendant excepted.

The foregoing rulings of the trial court are now assigned for error. Both writs of attachment under which plaintiff in error sought to justify were issued upon claims not then due. Authority is conferred by statute upon creditors to maintain an action by attachment on a debt before it is due in certain specified cases; among others, where the debtor has sold or disposed of his property with the intent to defraud his creditors, or to hinder or delay them in the collection of their debts; and this is one of the grounds set up in each of the attachment affidavits. It is not claimed that the facts stated in the affidavits were insufficient to authorize the issuing of the attachments and the bringing of the suits. Power is conferred upon a county judge by section 238 of the Code to make an order allowing an attachment to issue on a debt not due, upon the proper affidavit being made and filed. This was expressly decided in Reed v. Bagley, 24 Neb. 336, 38 N. W. Rep. 827, and must be regarded as the settled law of the state. It is urged that the writ of attachment in...