Holzman v. Martinez , 2 N.M. 271 ( 1882 )

Bristol, Associate Justice:

On the 21st day of Sept., 1880, Felix Martinez, the defendant in error, before one Jesus M. Tafoya, the then probate clerk of said county, made an affidavit for an attachment against the property of Philip Holzman, the plaintiff in error, to secure a debt claimed to be due in the sum of $2,000. The affidavit contains no statement as to the cause or grounds of the indebtedness.

On the same day the said Tafoya, as such clerk of the probate court, issued under his official signature and the seal of said probate court, a writ of attachment directed to the constable of said county, commanding him to attach sufficient of the goods, chattels and estate of the plaintiff in error, to pay the said sum of $2,000 with interest and costs. The writ was made returnable to the next March term of said district court for the year 1880.

On the 22ddayof January, 1881, the sheriff of said county, filed said writ in the office of the clerk of said district court with the return of his doings thereunder, indorsed thereon as follows:

“ I certify that I have served this order, having attached property sufficient to cover the debt, as the inventory shows, which property remained in possession of the defendant, having given bond to retain possession of the same. Done this day of Sept., 1880.

“ DESIDERIO ROMERO, Sheriff.

“By Jose D. Romero, Deputy.”

On the said 22d day of January, 1881, said sheriff also filed in the' office of said clerk of the district court, a receipt signed by the plaintiff in error, dated Sept. 22,1880, to the effect that he had received of said sheriff the goods and chattels that had been attached by him in a suit of Felix Martinez against him, in which receipt the goods and chattels are described; and on said 22d day of January, 1881, said sheriff also filed in said office of the clerk of the district court, a bond executed by the plaintiff in error as principal and by two sureties,in the penal sum of $4,000, payable to said sheriff, bearing date the 22d day of September, 1880, to be void if the said plaintiff in error shall have the property attached by said sheriff under a certain writ ■ of attachment sued out by the defendant in error before the said probate clerk against the plaintiff in error for the sum of $2,000, when and where the court shall direct, and shall.abide the judgment of the court in the premises. • Such bond recites that said writ is returnable “ to the district court for said county at the March term, as mentioned in said writ.”

On the eighth day of March, 1881, the defendant in error filed in the office of the clerk of the court below, a declaration alleging facts constituting a cause of action against the plaintiff in error for a money demand in the sum of $2,000 and interest; such declaration having been previously indorsed as follows:

“ Filed Sept. 21,1880.

“JESUS M. TAFOYA,

“ Clerk.”

Also on the eighth day of March, 1881, the defendant in error filed in the office of the clerk of the court below, the affidavit for attachment above mentioned; the same having been previously indorsed as follows:

“ Filed September 21, 1880.

“JESUS M. TAFOYA,

“Probate GlerTe."

Also on the eighth day of March, 1881, the defendant in error, filed in the office of the clerk of the court below, a bond for an attachment against the goods, chattels and estate of the plaintiff in error for the sum of $2,000 bearing date the — day of September, 1880, and reciting among other things, that whereas, the defendant in error had that day “ sued out an attachment before Jesus M. Taeoya, clerk of the probate court, against Philip Holzman, for the sum of two thousand dollars, returnable to the next March term of the district court, for the county of San Miguel,” etc.; the same having been previous to such filing with the clerk of the court below, indorsed as follows :

“ Approved by me this 21st day of Sept., A. D. 1880.

( Probate Court Seal, > •< New Mexico, > ( County of San Miguel, )

‘‘ JESUS M. TAFOYA,

-n 7 ™ 1 >* Probate Qlerfo,

And further indorsed as follows:

“ Filed in my office Sept. 21, 1880.

“JESUS M. TAFOYA,

“ Probate Glerh"

On the ninth day of March, 1881, at the regular March term of the court below, the plaintiff in error, filed with the clerk of such court, the following motion, viz.:

“ And now comes the said defendant (plaintiff in error), and for the purpose of this motion and for no other, and moves the court to quash the writ of attachment herein for the following reasons, to wit: ”

fflrst. Said writ of attachment is void on its face.

Second. Said writ of attachment is returnable to an impossible day and impossible term, if to any term at all.

Third. Said writ of attachment is returnable before the Hon. L, Bradford Prince, and not before any court.

Fourth. The summons in said writ is also returnable before the Hon. L. Bradford Prince and not before the court.

Fifth. Said writ bears no teste of any court.

Sixth. The said writ has no indorsement containing a brief statement of the cause of action thereon, as required by law.

Seventh. Said writ is otherwise uncertain, defective and insufficient in many other respects as appears from the face thereof.

Thereafter at the last aforesaid term of the court below, and before any other proceedings were had in the case, the plaintiff in error appeared for the purpose of said motion, and for no other purpose, and the same being argued by counsel for the respective parties, was submitted and overruled.

Thereafter at the term of the court below last aforesaid, the following and no other proceedings were had in the case as appears from the record, the recital of which is as follows, to wit:

“ FELIX MARTINEZ v. PHILLIP HOLZMAN. } Assumpsit begun by attachment.

“ Now comes the said plaintiff (defendant in error), by his attorney, Gr. W. Prichard, Esquire, and the defendant (plaintiff in error), although three times solemnly called, comes not, but makes default. It is therefore considered by the court that the said plaintiff ought to recover of the said defendant, his damages by reason of the premises.”

Afterwards, at the same term, the record recites the following proceedings in the.same court, to wit:

"FELIX MARTINEZ V. PHILIP HOLZMAN } Assumpit begun by attachment.

“ Nowcomes the said plaintiff, by his attorney, G. W. Prichard, Esq., and the said defendant, having made default on a former day of the present term, and no jury being demanded by the said plaintiff, the court, after hearing the evidence, assesses the damages of the said plaintiff by reason of the premises, at two thousand dollars. It is therefore considered and adjudged by the court, that the said plaintiff, Felix Martinez, recover of the said defendant, Philip Holzman, the sum of two thousand dollars, his damages assessed as aforesaid, and also his costs in this behalf expended, taxed to sixty-six dollars and thirty cents, and that he have execution therefor.”

A great many errors claimed to appear on the face of the record, are argued on behalf of plaintiff in error, and a multitude of questions are raised in behalf of either party; they cannot all be considered within our limited time.

The question was elaborately argued as to whether there had been a general appearance in the court below on the part of the plaintiff in error.

It has been uniformly held by all the courts of the territory, that when a party appears for the purpose of making a motion for irregularity, and states specifically in the motion that he appears for that purpose, and no other, it is a special, and not a general appearance. It was persistently urged on behalf of the defendant in error, that the giving of the bond by the plaintiff in error for the purpose of retaining possession of the property claimed by the sheriff to have been attached, was in law a general appearance for all purposes, and was a waiver of all preceding irregularities. Numerous authorities were cited to sustain that assumption, but those decisions were all made upon special statutes differing from oui’s, many of which expressly providing that among the conditions .of the bond, there shall be one binding the defendant to appear, or suffer default. And all of them providing that such bond shall in effect dissolve the attachment proceedings by transferring the security from the property attached to the bond itself.

No doubt, in these cases, the decisions in part were based upon the fact of the regularity of the proceedings so far as to confer jurisdiction upon the court of the subject matter of the suit and over the property attached, as well as of the person of the defendant.

Under our statute, the giving of what is sometimes called a forthcoming bond in attachment, does not release the property from the attachment lien. It simply constitutes the defendant the bailee of the sheriff for the sáfe keeping of the property, and for its return to the sheriff in case the plaintiff shall recover, and in default of which the liability of the bond attaches to the defendant and his sureties. The doctrine that such a bond constitutes a general appearance on behalf of the defendant, and a waiver by him of all irregularities at a time when no citation has been served on him, and no notice whatever of the cause of the action, either by the declaration or statement in the writ, or otherwise, and that it will so far waive irregularities as to confer upon the court jurisdiction of the subject matter of the suit where none had previously existed, is, in our opinion, manifestly unjust and contrary to sound principles of law.

But outside of these considerations, any question as to whether there was a general appearance in the court below by the plaintiff in error, is determined by the record, which shows conclusively that the damages were assessed by the court, and judgment therefor entered on the ground that there had been no appearance by the defendant below. This was clearly considered and adjudged by the court below.

If there had been a general appearance, then it would have been irregular to proceed to assess damages and enter judgment before first entering a rule to plead, and showing noncomplianee therewith. If this had been the case, then judgment 'nil flieet, instead of for non-appearance, would have been the proper proceeding. The record, therefore, discloses the fact that there was no general appearance of the plaintiff in error in the court below, and no waiver by hint of any irregularities in the proceedings of that court.

In case the defendant.does not appear, it is always incumbent on the court before proceeding in the cause to see that the preliminary proceedings have been so far regular and sufficient, as to confer not only jurisdiction of the subject matter of the suit, but also of the person of the defendant.

In an attachment case this is to be determined by- the affidavit and bond for an attachment, the writ with the officer’s doings thereunder, as shown by his return, the declaration and service of a copy thereof, and the authority of the officer issuing the writ. In the present case the affidavit was taken and filed with the probate clerk. The bonds were approved by and-filed with him,-and even the declaration in the first instance was so filed. The writ was issued by him, and authenticated by the seal of the probate court, and not by the seal of the court below.

The statute under which the preliminary proceedings of this case were instituted before and by the probate clerk is as follows, to wit:

“ Any person wishing to sue his debtor by attachment, when the debt or sum claimed exceeds the sum of one hundred dollars, may do so by first filing with the clerk of the district court of the county in which the debtor lives, or before the clerk of the probate court of the county in which the suit is brought, an affidavit and bond, as now required to be done before the clerk of the district court, which shall authorize the clerk before whom said affidavit and bond shall be filed to issue writs of attachment the same as clerks of the district courts ; which attachment, together with the affidavit and bond, when issued by the clerks of the probate court, shall be by them made returnable to the next term of the district court for the proper county, and shall be by them returned to said district court on or before the first day of said term Gen. Laws N. M., Prince’s ed., 140.

The provisions of this statute conferring authority on probate clerks to entertain applications for and to issue writs of attachment returnable to the district courts, in order to be effective, must be considered as repealing, by the remotest implication, so many positive requirements of the law previously existing, especially in the face of the organic act and legislation of congress providing for the appointment of clerks for the district courts of the territories, as to render the authority so conferred on probate clerks exceedingly doubtful and impracticable. For instance, it must be conceded that process of every description cognizable by the district court must be authenticated. “ The district court of each county * * * shall have a seal, which shall be kept by the clerk thereof, and with it he shall authenticate all documents emanating from his office needing authentication Gen. Laws N. M., sec. 3, p. 116.

By this law the clerk of the district court is made the custodian of its seal, and all process which he is authorized to issue must be authenticated by him with such seal. Without such seal the court will not recognize it as authentic.

The probate clerks are to issue writs of attachment, the same as the district court clerks, with no express provisions in the statute as to how the probate clerks are to authenticate the writs.

The statute provides that the district court clerk issuing a writ of attachment shall approve the bond in attachment, both.as to the amount of the penalty and sufficiency of the surety; but there is no express provision for such approval by the probate clerk. Before the clerk of the district court is authorized to issue a writ of attachment, a declaration, as well as affidavit, must be filed in his office: Gen. Laws N. M., Prince ed., sec. 2, p. 136; but there is no express provision for filing a declaration with the probate clerk. The policy of congress in conferring on the territorial district courts the authority to appoint their own clerks was no doubt to grant to them the exclusive right to determine who shall perform the duties of that office,' and to insure to such courts a wholesome supervision over them.

In view of the legislation of congress on the subject, it may well be doubted whether the territorial legislature has the power to arbitrarily create and impose on the courts an}r other office the duties of which shall be to supersede any of those of their own clerks.

It is not necessary for the final disposition of the case to decide this question.

The record shows that there was nothing before the court below showing that the writ had ever been served on the plaintiff in error, or that the declaration, or any statement of notice of the cause of action was ever served on him. The court below, therefore, at the time the judgment was rendered, had acquired no jurisdiction of the person of the plaintiff in error, and had no authority to render a judgment in personam against him.

Under the rules of practice prescribed for the district courts in case of personal service of process, a copy of the declaration must be served before the court can treat the defendant as in default. This was not done.

The service of a writ of attachment is never complete without also serving the petition or other statement of the cause of action: Ibid., subd. 1 of sec. 9, p. 137.

The writ, by its term, was made returnable on a day and to a term of court then past. It was, therefore, returnable on an impossible day and to an impossible term. This rendered the writ void upon its face and all proceedings thereunder void also, and excused the plaintiff in error from paying any attention to it, even if it had been served: 3 N. H., 70; 2 Johns., 190; 4 Ibid., 309; 3 Wilson, 341; 3 Mo., 286.

The writ being void and the plaintiff in error not appearing in the court below, except for the special purpose of moving to quash for irregularity, the attachment should be ■dissolved; the plaintiff in error and his sureties on said forthcoming bond discharged from liability thereon; the judgment reversed, and the case remanded to the court below for issuance and service of proper process and such other and further proceedings as may be in conformity to law, and it is so ordered.