Blake v. Rider ( 1887 )

Opinion by

Simpson, C.:

It is suggested by counsel for defendants in error that the plaintiff in error does not come within Long Brothers v. Murphy, 27 Kas. 375, because his interest in the property attached was acquired subsequently to the lien of the attachment; but as this is, in another aspect, the vital question in the case, we prefer not now to pass upon that proposition. There can be no question but that the attachment lien was prior to the execution and delivery of the deed of Briscoe to the plaintiff in error, if the attachment proceeding, or rather the manner of its service by the sheriff, was of any validity. It is urged that as the lots were separate and distinct tracts of real estate, it was the duty of the sheriff to post a copy of the order of attachment on each lot, instead of but one, and that in consequence of his neglect so to do the attachment is void. We think this question fairly determined by the case of Wilkins v. Tourtellott, 28 Kas. 825. The facts are much stronger here than in that case, because in the reported case, the return of the officer did not show that any attempt had been made to leave on the land a copy of the order of attachment, and that at most it was an irregularity rather than a fatal defect. As it was claimed that as a matter of fact the sheriff did leave a copy of the order on the place, but failed to so state in the return, he was permitted to amend the return in that respect. Plere the return of the sheriff as embodied in the record recites:

“And I took possession of, and now hold subject to the order of the court, the following-described property as the property of the said defendant, at the suit of the within-named plaintiffs, [here follows a description of the real estate,] and finding no person occupying and in possession of said tracts of real estate, I posted, in a conspicuous place thereon, a copy of the within order.”

Now the main object of the requirement that a copy of the order should be placed in some conspicuous place on the land, where the attachment is levied on unoccupied real estate, is in aid of service on the defendant in the attachment proceedings. It is another effort to inform the defendant that he has been sued. It is invariably the fact that a non-resident owner of unimproved land has some resident agent in the neighborhood, and the law attempts to utilize it in bringing home to the defendant knowledge of the pendency of the action. We have no doubt but that in many cases persons whose real estate has been made the object of an attachment lien derive their first knowledge of the suit from such a fact. But in this ease, within a few hours after the levy a personal service of the summons was served on the defendant in the attachment suit, so that it is not in fact a practical question in this case as to whether the notice was posted on all, instead of but one, of the town lots. All we do hold is, that the failure to post or leave a copy of the order on all the lots does not render the attachment proceedings void.

The purpose for which this motion to discharge the attachment lien on these town lots is used in this action is virtually to try the title to the lots. It is disposing of the title to real estate in a very summary manner, and we do not want to be understood as expressing any opinion except as to the effect of the requirement to leave a copy of the order on the real estate attached.

We see no error in the ruling of the court below, and therefore recommend that it be affirmed.

By the Court: It is so ordered. All the Justices concurring.