Dye v. Crary

78 P. 533, 12 N.M. 460

Opinions

OPINION OF THE COURT.

BAKER, J.

If the court acquired jurisdiction of the subject-matter in this case all the irregularities complained of must be "brushed aside. Voorhees v. U. S. Bank, 35 U. S. 447; Cooper v. Reynolds, 77 U. S. 308. If the alias writ- of attachment was lawfully issued the court in Taliaferro v. Dye had jurisdiction of 'the rom and power to order the sale, of the property attached. Was the alias writ of attachment issued by authority of law ? The answer to this question must settle the controversy in this case. The Legislature has undertaken to give us an attachment procedure. Compiled Law’s of 1897, sections 2686 to 2736, inclusive. If alias writs of attachment are not authorized by our statutes then they can not issue. Section 2686 provides that when a claim is one hundred dollars or over one may sue in the district court by attachment, by setting up the statutory grounds therefor. Section 2690 of the Compiled Laws provides that the bond (approved by the clerk), the affidavit and petition shall be filed before the attachment shall be issued. Section 2696 provides that original -writs of attachment shall be directed to the sheriff. Section 2697 provides that “original writs of attachment shall be' issued and returned in like manner as ordinary writs of citations.” Why the use in sections 2690, 2696 and 2697 of the words “original attachments”? Did the Legislature mean thereby to exclude alias writs of attachment? Section 2715, Compiled Lws, provides the form of the bond as well as the conditions thereof, as follows: “Know all men by these presents, that we (A. B. as principal or O. D. agent, for A. B. principal, as the case may be) and N. M. and M. M. his sureties, are held and firmly bound unto the Territory of New Mexico in the sum of dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents, sealed -with our seals and dated this - day of ---A. D. -.

“The condition of the above obligation is such that whereas, the above-named A. B. has this day sued out an attachment before J. J., clerk of the district court, against E. F. for the sum of-dollars, returnable to the next term of the district court for the county of ______."

The original writ of attachment would be returnable at the next term of the' court, while the alias writ of attachment might not be issued until long after such term. Could it be said that the bondsmen would be holden for damages for the wrongful suing out of the alias writ of attachment when the bond provides that “the conditions of the above obligation are such that whereas the above-named A. B. has this day sued out an attachment against E. F. for —-dollars returnable at the-term of the district court for the county of-”? We think not. The ground for the attachment might exist when the bond was given and the original writ issued, but might not exist at the time of the issuance of an alias writ. For instance, the first ground of attachment provided for in the statute, non-residence, existing at the time of the issuance of the original writ, might not exist at the time of the issuance of the alias writ, for the defendant long before the issuance of the alias writ might have become a resident of the Territory, and if an alias writ of attachment can be issued at all, it can as well be issued one year after the issuing of the original writ as one day or one month thereafter. The conditions of the parties might change very materially and the bondsmen might not be willing under such changed conditions to stand sponsor for the damage that might result from the issuance of an alias or any other writ of attachment under the then existing circumstances. Yet, if an alias writ may issue, it must carry with it the obligations of the bondsmen, otherwise you have a writ of attachment without bond, which certainly can not be contended. Sections 2721 and 2722 of the Compiled Laws provide for ancillary writs of attachment and the mode of procedure, but they shed no light on the subject of an alias writ of attachment.

Attachment being in derogation of the common law, must comply with the statute, Cyc., 4 Procedure, p. 400, par. 4 and citations; 3 Am. and Eng. Ency. of Law, 184 (2 Ed.) ; Drake on Attachment (5 Ed.), sec. 4; Wapple on Attachment, p. 24, sec. 7; 1 Wade on Attachment, sec. 2; 1 Shin on Attachment, sec. 8; 3 Blackstone’s Com., ch. 19.

The common law is the rule of practice and- decision in this Territory. Compiled Laws of 1897, sec. 2871.

Attachment being in derogation of the common law, we must look to our statutes. If our statutes do not authorize the issuance of an alias writ of attachment, then one can not be issued. Certainly our statutes do not provide for an alias writ of attachment in express terms nor do we think, by implication.

The position of the appellees that section 2727, Compiled Laws, gives the court jurisdiction of the property of the defendant from and after the issuance of the writ is tenable only so far as it relates to the property actually levied upon. The court acquires its jurisdiction from a legal writ, a levy thereof, and a return thereon by the proper officer. In Cooper v. Reynolds, supra, at page 319, the court says: “Now, in this class of cases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this, the court can proceed no further with it; the court cannot proceed to subject the property to the demand of the plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied, upon property liable to the attachment, when such writ is returned into court the power of the court over the res is established.” This case is much relied upon by appellees. They also cite with much reliance, the case of Voorhees v. Bank, supra, in which case at page 440, the court says: “On comparing the record of the proceedings on the attachment with the provisions of the act of 1865 (Chase’s Ohio Laws, 462, etc.), the acts of the court in all of the course of the pause appears to be in conformity therewith, except in the following particulars on which the objections to the validity of the sale are, founded.” The five objections in short, were: 1, that the affidavit was not in proper form; 2, that there was not sufficient notice given for sale; 3, that the defendants were not three times called as provided by law; 4, that the sale was made before the expiration of the time of notice, and 5, that the return of the auditor showed the deed executed to a person other than the purchaser. It will be observed that these objections were merely irregularities, and further, that the record as stated by the court showed that the court had jurisdiction that is to say, there was a legal writ of attachment; that it was levied, and that a proper return by the proper officer was made thereon. Á judgment of a court of competent jurisdiction is presumed to be regular and correct and that all things to be done to make it so were done, unless the contrary affirmatively appear on the face of .the record of such case. This proposition is settled by an unbroken line of authorities, and no citations are called for.

The record in the case of Taliaferro v. Dye shows that on March 3, 1898, the suit was begun; that a writ of attachment issued and was delivered to the sheriff on the fifteenth of March 1898, on which day plaintiff executed the same by levying upon the undivided one-half of lots 2, 8 and 11, in section 25, and on other property (not the property levied upon by the alias writ of attachment), in township 6, south of range 11 E. The sheriff made due return of his doings under the writ on the sixteenth of March, and on the seventeenth of March notice of suit by publication was begun and continued weekly in a weekly newspaper until the fourteenth day of April, 1898.

The record also shows that on the eleventh day of May, 1898, an alias writ of attachment was issued and that no additional or other affidavit or bond was filed. It will be thus observed that the record in the case of Taliaferro v. Dye, expressly and clearly shows that the original writ of-attachment was issued, executed and returned, thus ending the life of that writ of attachment and that the alias writ of attachment thereafter issued. So, then, if there is no authority to issue an alias writ of attachment, the record disclosing that one was issued, shows upon its face the want of jurisdiction of the court over the property levied upon under such alias writ. We are of the opinion that the alias writ of attachment in the case of Taliaferro against Dye was issued without authority of law and conferred no jurisdiction upon the court over the property attached thereunder. Therefore, the court acted without jurisdiction and the purchaser at the sale of the property under such alias writ of attachment got no title, and those claiming said property under said Taliaferro in whole or in part, as well as said Taliaferro, acquired no title and have no title to the property in controversy.

This case must be reversed and remanded for further proceedings in accordance with this opinion; and it is 'so ordered.

Pope, Mann, and' Parker, JJ., concur.