Paul v. Smith , 1885 Ky. LEXIS 2 ( 1885 )

JUDGE HOLT

delivered the opinion oe the court..

The defense of the appellees to this action of ejectment by the appellants, as the heirs of F. H. Paul, is that the land was attached for his debts, and purchased by the party through whom they claim title, at a decretal sale; and it being assailed collaterally, the only * question to be determined is whether it was void.

By section 2, of an act of the Legislature of Kentucky, passed December 23, 1861, and entitled “An act, to amend the Code of Practice in civil cases,” an additional ground of attachment was provided in these words: ‘ ‘ That he oi they have voluntarily left the county of his or their residence; have been absent -.therefrom for thirty days, and during said period of -time have been, and continued voluntarily, within the •so-called Confederate States or their military lines.” (Myer’s Supplement, page 38.)

■ On January 4, 1862, A. P. and William Hughes Brought each an action for debt in the Henry Circuit • Court against F. H. Paul, and on February 1, 1862, F. H. Bobbitt did the same. Attachments were sued out in each case, upon the ground above' stated, and levied upon the land in contest; also a warning order was made in each case, and a report filed by the duly appointed corresponding attorney. ■

Proper attachment bonds were executed, as well as the required bonds to the non - resident defendant; .and the actions, after consolidation, having proceeded -to a; judgment, the attached property was sold there■under, and purchased by the two plaintiffs, the Hughes, and then by their order conveyed by the court’s commissioner to their sister, who was the wife of F. H.' Paul and the mother of the appellants, and through whom' the appellees claim title.

The success or defeat of the appellants, in this action, depends upon whether the Henry Circuit Court had jurisdiction to render said judgment; because it may now be regarded as a legal maxim, that when a judgment is offered in evidence collaterally in another suit, its validity can not be questioned, except for want of jurisdiction in the court that rendered it.

In the two suits first above named, the ground for the attachment was thus stated: “ Said F. H. Paul has voluntarily left the county of his residence; has been absent therefrom for thirty days, and during said period of time has been, and continued voluntarily, within the so-called Confederate States or their military lines; ’ ’ while in the Bobbitt case it is as follows : £ £ Said F. H. Paul has voluntarily left Henry county and State aforesaid, the county of his residence ; has been absent therefrom for thirty days; and during that period of time has been, and continued, in the so-called Confederate States or their military lines.”

It is urged that the jurisdiction of the court depended upon the grounds for the attachments being properly stated, and that in the two cases first named it was not alleged that the defendant, F. H. Paul, was, when he left the county of his residence, a resident of Kentucky ; while in the last one, the word u voluntarily ” as used in the statute, was omitted from the statement relating to the defendant having remained within the-. Confederate States or their military lines.

This court has heretofore held said statute to be valid, and it was, of course, intended to relate only to residents of Kentucky ; its language was used in setting forth the ground of attachment in the two first-named cases; and it is said in Drake on Attachment, section. 98, that no more is required.

A substantial compliance is certainly sufficient. If,, by fair inference, the scope and sense of the law have-been fulfilled, a technical objection, which does not reach to the substance, will not avail, even if a statute in derogation of the common law be in question.

Where a statute authorized an attachment upon the ground that the defendant “resides out of the State f an affidavit stating that “he is a non-resident” was held sufficient, although it failed to state whether the alleged non-residence related to the county, district or State.

In this instance the action was brought in this State, and under a statute which related to residents of this State alone. The petition alleged that the defendant had “voluntarily left the county of his residence,,” and this, upon such a state of facts, should, in our opinion, be held to mean that he had left the county of his residence in Kentucky, and we are therefore of the opinion that the.ground of attachment in said two cases, was sufficiently stated.

But granting that the omissions, in stating the-grounds of attachment, were' irregularities of- such a-character that they would have authorized a reversal of' the judgment upon a direct appeal from it, yet did they. render it void, so that it can be questioned collaterally ? or, more broadly stated, did the jurisdiction of the court •depend upon- the sufficiency of the statement of the ■grounds of attachment, or was it acquired by the constructive service of the summons upon the defendant, by means of the- warning order and the levy of the attachment upon the property, and the return thereof ?

'The work above cited, of Mr. Drake, seems to hold that the proper statement of the grounds of attachment •confer it; but he bases his opinion mainly upon some Tennessee and New York cases; and, upon an examination of the latter, we find that they arose under a statute by which the attachment was the original process ; that the affidavit upon which it issued was not amendable; and that it was issued by a mere officer out of court, whose power was limited and derived solely from the statute.

In such a case the sufficiency of the affidavit might well be held to be a jurisdictional question. Under the present Code of New York, however, the attachment.is, as under our practice, a mere provisional remedy, and not the commencement of the- action; and it has been repeatedly decided by the courts of that State, since the adoption of its Code, that the jurisdiction does not depend upon the proper statement of the grounds of attachment. (In the matter of Griswold, 13 Barbour, 412 ; Thompson on Prov. Remedies, page 379.)

By section 39, of our Civil Code, an action is commenced by filing a petition, and causing a summons to be issued or a warning order to be made; and when ■once properly commenced, the jurisdiction of the court to proceed is acquired; and it is difficult to see why the statement of the grounds for a mere provisional remedy should control the jurisdiction, when the granting of an attachment and its levy, merely, would not authorize the court to proceed and render a judgment.

The jurisdiction of the person arises from the actual or constructive service of process, while the writ of attachment draws the property within the’ court’s power, and a lien is created upon the property of one constructively summoned by the levy of the attachment. (Myers’ Code, section 449 ; Act of December 23, 1861, section 13; Myers’ Sup., page 38.)

In Cooper v. Reynolds, 10 Wall., 308, the Supreme Court of the United States, in a case arising under the laws of Tennessee, held that a defective affidavit for an ■attachment might be ground for a reversal of the judgment, but did not render it void ; and the decisions of this court are in accord with this doctrine.

In the case of Allen v. Brown, 4 Met., 342, the court uses this language:

‘£ The Code does not declare that the clerk’s order of ■attachment shall be void unless the requisite affidavit is filed, nor that the jurisdiction of the court is to depend on the filing of such affidavit. The case seems to be within the general rule, that the proceedings of a court, having jurisdiction of the person or subject, are not void, however erroneous they may be. The jurisdiction of the court in attachment cases depends upon the actual or constructive service of process upon .the •defendant, and not upon the plaintiff ’ s affidavit, nor upon the cleric's order."

In the last-named case, the affidavit for the attachment was defective in not stating that the claim was just; .and it is claimed by counsel that the point as to which, the above language is decisive was not presented;, but the judgment of the lower court had to be reversed, and the question was raised whether, upon the return of the cause, the affidavit could be amended; and, after stating that if the attachment were void by reason of' the defective affidavit, an amendment could not aid it, the court properly considered the question whether it was void, or merely erroneous; and, in-doing so, used the language swpra.

In the case of Bailey v. Beadles & Bolinger, 7 Bush, 383, there was a like defect in the affidavit as in the' last-named case, and the court decided that it was. indispensably necessary that an attaching plaintiff should state that his claim is just, and that the failure-to do so was an irregularity warranting a reversal upon an appeal, but that it did not render the order of attachment or the judgment void.

A distinction is attempted to be drawn between the necessity for stating a ground for an attachment, and, as counsel term it, an affidavit for obtaining it, as that the claim is just, etc. We are unable, however, to perceive the force of it as to the question now presented. The same Code of Practice that requires the ground of attachment to be stated is equally as imperative in requiring that the plaintiff shall state that his demand is just; and it is said in Drake on Attachment, section 95, that the failure to make the latter statement, is just as fatal to the attachment as a failure to properly allege, the ground of attachment.

In the case of Bailey v. Beadles & Bolinger, supra, the land attached had been ordered to be sold, and it was claimed that by reason of the defect in the affidavit the order of attachment was void, and that the court had no jurisdiction to render a judgment either in personam or in rem, and in deciding this question, thus directly presented, the • court not only cited, with' approval, the case of Allen v. Brown, but quoted from it as supra,- showing that it did not regard that part of the opinion as dicta.

In Thomas v. Mahone, 9 Bush, 111, it is said: “The jurisdiction is acquired thirty days after the order of warning is made. It is at that time that the defendant is deemed to be constructively summoned. (Section 91, Civil Code.) The local jurisdiction of the court over-the thing sought to be sold, and the jurisdiction acquired over the person of the defendant by the constructive service of process provided by law, authorizes the court to proceed, and, -although the failure to appoint the attorney or to take the bond required by section 440 are reversible errors, the jurisdiction being complete, the judgment will not be void.”

Again, in the case of Burchett, &c., v. Burchett, 5 Ky. Law Rep., page 314, this court held that in an attachment case, the jurisdiction of the court depends upon the actual or constructive service of process, and not upon the plaintiff’s affidavit or the clerk’s order.

There is no decision of this court in conflict with the rule laid down in the above cases.

In Bell, Berkley & Co. v. Hall’s Ex’rs, 2 Duvall, 288, it was held, as to three of the cases (consolidated), that the attachments were “unauthorized'” because it was not alleged that the defendant had voluntarily left the county of his residence; but in these cases the attaching creditors were at war among themselves as to the priority of the attachments in the original suits; and the question of their validity, or the sale under them, did not arise collaterally.

In the case now under consideration, the provisions of the Code of Practice as to constructive service were fully complied with, and it was because this had not been done that this court, in Brownfield, &c., v. Dyer, &c., 7 Bush, 506, held that the judgment then in question was void for want of jurisdiction.

In Grigsby, &c., v. Barr, &c., 14 Bush, 830, no attachment had ever been issued, and the sale of land that had been made was held to be void because the court had never obtained any power over it.

It would be unreasonable to require a purchaser at a judicial sale to examine the entire record upon which it is based in order to detect irregularities of procedure. It is true that the sale of the property of a nonresident under attachment is in derogation of the common law ; ■ that it involves the exercise of extraordinary power, and hence it should appear that the proceeding was cor am judice. But, to prevent the unsettling of titles and technical objections from overriding principles at the expense of justice, courts should incline favorably to judicial sales.

In this instance, the property was purchased by the brothers-in-law of E. II. Paul; they conveyed it to Mrs. Paul; she sold it for $5,000, and presumably the appellants shared the benefit with her. Innocent purchasers had held it undisturbed for sixteen years before this suit was brought, and, during that time, as the various conveyances show, they have greatly improved it, and equity, as well as the rules of law, forbid that • they should now be deprived of it.

Judgment affirmed,

Judge Pit you not sitting.