Smith, Heddins & Co. v. Hackley , 44 Mo. App. 614 ( 1891 )

Gill, J.

For an understanding of the legal questions involved in this case it is only necessary to state, that plaintiffs brought suit by attachment in LaFayette county against the defendant, and at the return term defendant filed his plea in abatement putting in issue the grounds of attachment as set out in the affidavit. Thereupon on the application of plaintiffs a change of venue was awarded to the circuit court of Saline county. In the Saline court defendant filed a motion to quash the alleged writ of attachment on the ground that said writ was not signed by the clerk of the circuit court of LaFayette county, and was, therefore, no authority to the officer in making the levy, etc. From the action of the court in sustaining this motion to quash the writ of attachment, plaintiffs have appealed, and the propriety of such ruling is the question for determination. The attachment writ assailed runs in the name of the state of Missouri, directed to the sheriff of LaFayette county, and after the usual commands for summons and for the attaching of defendant’s property, closes with these words of the printed blank :

“Witness O. B. Daniel, clerk of our said court, with his official seal hereto affixed at office in the city

of Lexington, this-day of-, A. D. 187 — .

“[Seal.] .................., Clerk.

“By............Deputy Clerk.”

I. The character of process to be issued, either to bring in the defendant or his property, is defined by section 8950, Revised Statutes, 1889, which read as follows: “ All writs and process issued out of any court of record shall run in the name of the state of Missouri, and shall be tested by the clerk of the court from which the same shall be issued, and sealed with the judicial seal of such court.” And so the constitution (section 38, article 6) provides that “all writs and process shall run * * in the name of the state of Missouri all writs shall be attested by the clerk of the court from which they shall be issued.” The only difference between the requirements of the statute and the constitution is, that by the former the writ must be authenticated by the court’s seal as well as attested by the clerk, while the constitution makes no mention of the seal of the court. Now the writ in question has, it seems, the court’s seal attached, but the attestation by the clerk is wanting. Is this omission of attesting by the clerk fatal to the writ on a motion to quash? We answer, yes. In our opinion it is immaterial in this particular case, whether the absence of the clerk’s attestation shall be regarded such an omission as to render the paper altogether void as a writ, or only irregular and voidable. For if said writ was merely defective or irregular, then, on a failure To amend, it is clear that it was subject to a successful motion to quash. It was not amended, nor was there any offer to amend. A defective writ successfully assaulted by a motion to quash, interposed in due season, is the same as no process at all. The most that can be claimed from the cases cited by plaintiffs’ counsel is, that such want of the clerk’s attestation only amounted to an irregularity, or a defective process, which was subject to amendment. They concede that such defective process may be taken advantage of by motion to quash filed in due season. See, for example, Doan v. Boley, 88 Mo. 449; Hansford v. Hansford, 34 Mo. App. 272; Jump v. Baton’s Creditors, 35 Mo. 193; 47 Ark. 377; 71 Ind. 306, etc. In the case at bar it is clear that, to say the least, the writ was defective in that it was not attested by the clerk. This is a serious omission, and has been held to render the writ absolutely void. Wade on Att., sec. 121. At all events the omission of the clerk’s signature was such an irregularity or defect as to furnish grounds for a motion to quash.

II. But it is further contended by plaintiff’s counsel, that defendant, by his conduct in filing his plea in abatement and submitting to a trial of the grounds for attachment, waived the absence of a valid writ of attachment. This claim must rest on the following facts: It seems that the defendant first filed a plea in abatement ; then followed the motion to quash, so that by the judgment of the court the case stood an attachment without a writ. Plaintiffs then (for the mistaken pui’pose probably of preparing the case for appeal) demanded a trial on the plea in abatement. Defendant at first protested and objected to any such trial, but then withdrew such objections, and the court proceeded to the trial of said plea in abatement, a jury being waived. After the introduction of the evidence on such supposed issues, the court at the request of the defendant declared as there had been no writ of attachment issued in said cause, and no attachment of any property, “then the court had no jurisdiction to try the issues made by the affidavit and plea in abatement, nor to render any judgment sustaining any finding for plaintiffs on such issues,” and judgment was thereupon rendered for defendant. Admitting now the correctness of the court’s action in quashing the attachment writ, the contention, practically, now is, that the defendant by subsequently joining in a trial of the plea in abatement waived the necessity of a writ, and is bound the same as though there was a valid writ of attachment. We cannot indorse this position. As already said, whether the pretended writ of attachment was void on its face, or only voidable or defective, the sustaining a motion to quash had the effect of striking from the record the paper called a writ, and the matter stood as if there never was any writ, defective or otherwise. Giving plaintiffs then the benefits of the facts, stated most strongly against defendant, admitting that the said defendant appeared in a proceeding by attachment, where there was no writ of attachment, and that he filed answer to the allegations of the affidavit and went to trial thereon, is the defendant under such circumstances denied the right to question the jurisdiction of the court in assuming to try the issues on such plea in abatement 2 In our opinion when the writ of attachment was quashed, the very vitals of the attachment proceedings were cut away. In the absence of an attachment writ there was no jurisdiction in the court to proceed. “Jurisdiction over the subject-matter in attachment cases is obtained only by the levy thereon of a writ properly issued.” Hardin v. Lee, 51 Mo. 244. What was said by us in Third National Bank v. Garton, 40 Mo. App. 122, is equally pertinent here: “It is well understood that, in the matter of jurisdiction over the person, a defendant may appear in court and submit himself to the jurisdiction thereof in the face of defective, or even void, process, and that he cannot thereafter complain of such want of process, since he will be deemed to have waived the necessity thereof. However, this rule has no application here, in a proceeding in its nature in rem, where the court seeks by its process to bring the thing into court for the purpose of subjecting such thing to the payment of the plaintiff’s claim. -x- * * phe presence or absence of the defendant in the suit has nothing to do with the presence or absence of the attached property. In other words the-defendant may be present and yet the defendant’s property absent, or not within the court’s jurisdiction.” The court had no jurisdiction over the property of this, defendant (after the writ was quashed), and consent of the parties could not confer jurisdiction. Bank v. Garton, 40 Mo. App. 123, and cases cited.

Besides,, it is well here to bear in mind, that the-defendant, as appears from the entire record, never conceded the jurisdiction of the circuit court. He opposed, the hearing, and the court, at his request, at the trial, declared in express terms that it had no j urisdiction.

Judgment affirmed.

Ellison, J., concurs ; Smith., P. J., dissents.