Repine v. McPherson

2 Kan. 340

• Court: Supreme Court of Kansas
• Decided: February 15, 1864
• Status: Published

Opinion

By the Court,

Crozier, C. J.

The only question in this case, is: Was the District Court for Leavenworth County legally authorized to lender, as it attempted to do, the judgment against Welton, in the case of Jacobs v. Welton?

The record shows that Welton was a non-resident, but it no where appears that he was personally served with process, or that he ever appeared to answer in this action. Nor does it appear, either from the affidavit for the attachment, the affidavit for the publication or the return of the sheriff, that he had a particle of property within the jurisdiction of the Court. The sheriff in his return shows that he executed the order of attachment by seizing the steamer “ White Cloud,” but he does not inform us whose property it was, or whether Welton had any interest in it whatever. Under this state of fact, however technically correct may have been the publication, could the Court render a valid judgment ?

Section 78 of the Code provides that service may be' made by publication when an action is brought against a non-resident of the State, (then Territory) having in this State, , (then Territory) property or debts owing to him, sought to be taken by any of the provisional remedies, or to be appropriated in any way. An attachment is a “provisional remedy.’* Under Section 199, a creditor may obtain the writ against the property of his debtor by showing that he, the debtor, is a non-resident. Section 202 provides that it shall require the sheriff to attach the property of the defendant within his county. Section 206 says, the officer “ shall go to the place where the defendant’s property may be found, and declare that by virtue of said order he attaches said property at the suit of the plaintiff;” and Section 213 requires the sheriff to “ return upon every order of attachment what he has done under it.” That is, he must show that he has attached the property of the defendant, not the property of A. B. or C. D., but of the defendant. The plaintiff in an attachment obtained upon the non-residency of the defendant can make service by publication only when he seeks to subject the property of the defendant to the payment of his claim; and the fact that he is seeking to subject property of the defendant within the jurisdiction of the Court issuing the process, must affirmatively appear. (Pelton v. Platner, 13 Ohio Rep., 209.) In a case where the defendant does not appear the record must show a legal service, or the judgment will be void, and the rule' is the same whether the service relied upon was personal or constructive.

The Court below decided that the judgment against Welton was absolutely void, and refused to let the record thereof be read in evidence. We think that decision was right upon whatever ground it may have been placed. The record does not show that Welton ever had an atom of property within the then Territory, or that he had a farthing’s worth of interest in the thing attached.

The judgment will be affirmed.

All the justices concurring.