Wilkins v. Tourtellott

42 Kan. 176

• Court: Supreme Court of Kansas
• Decided: July 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

This was an action to recover the possession of a small tract of land in Kansas City, Wyandotte county, brought by George W. Tourtellott et al. against Charles Wilkins et al. The action was commenced October 23, 1879. The case was originally tried before the district court of Wyandotte county, and special findings of fact and of law made, and judgment rendered in favor of the plaintiffs below. This judgment was reversed in this court at its January term, 1883. (28 Kas. 825; 29 id. 513.) The judgment was reversed solely upon the ground that the sheriff’s returns on the orders of attachment were not signed by him. This court said:

“A return to be complete requires the signature of the officer, authenticating the statement of facts made in it. The mere fact that a paper is filed containing a recital of certain acts, which paper is unsigned by anyone, contains no evidence either that the acts so stated were in fact done, or if done, by whom they were done. Process in the nature of an order of attachment must not only be executed in a certain way, but also by a certain officer, and the signature of the officer is essential to show both what was done and by whom it was done. This return in no manner discloses by whom the acts stated in it were in fact done — whether by the sheriff, or the plaintiff's attorney, or an entire stranger to the court or the case. Now without the signature of an officer, is it evidence that anything was in fact done ? Counsel argue that because the statutes of some states explicitly require that the return be signed by the officer, while ours does not, the failure to attach such signature is an immaterial omission. We cannot concur with this argument, because we think the signature is inherently an essential part of the return. . . .

“Nevertheless, the defect is one which is amendable. It is something which does not affect the fact of service, but simply the evidence of it. And generally amendments are permissible when they simply run to perfecting the proof of a service which was in fact made. But still the amendment is one which should be made. As the recoi’d stands, it fails to show service. We may not presume that service was in fact made; the record should show it. The return may be amended, but until amended we cannot presume that the facts were done and by the proper officer."

Subsequently, with the consent of the district court of Wyandotte county and upon due notice, the returns on the orders of attachment were amended with the signature of the officer executing the orders. The action was taken on a change of venue to the district court of Shawnee county, and tried by the court without a jury. That court made lengthy special findings of fact and of law, and rendered judgment in favor of the plaintiffs below — defendants in error. That court also handed down an elaborate written opinion. (4 Kas. L. J. 376-385.) In the opinion delivered in this court in this case at its July term, 1882, Mr. Justice Brewer, speaking for the court, said:

“As to the other defect, the failure to state in so many words that the officer left with the occupant, or if there were no occupant, in a conspicuous place on the real estate, a copy of the order, the case of Sharp v. Baird, 43 Cal. 577, is an authority directly in point, and holding the defect fatal. Notwithstanding this authority and the great ability of the court by which it was pronounced, we are not prepared to yield full assent to it. The return states that the officer took possession of the property. The code, § 226, declares that ‘ From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under the attachment/ Now if the attachment was properly issued, and the officer in fact took possession of the property, we are inclined to think that the failure to leave with the occupant, or on the place, a copy of the order, is a mere irregularity, and not a fatal defect. At any rate, if the officer did in fact so leave the order, the return may be so amended as to state the fact, and thus all question removed as to the regularity of the service.” (28 Kas. 835.)

At the January term of this court for 1883, when this case was again considered, Mr. Justice Brewer further said:

“The argument of counsel has caused us to doubt whether we were well advised in expressing in the opinion, as we did, dissent from the case of Sharp v. Baird, 43 Cal. 577; and therefore we desire to withdraw such expression of dissent. We shall not attempt now definitely to decide the question, inasmuch as counsel for defendants in error failed to make any argument thereon, or present any further authorities. We simply leave the matter open for further consideration, if occasion shall require. As to all other matters in the opinion, we see nothing that demands any correction. We are satisfied with the conclusion reached upon the facts and law, except as above indicated, and think that if upon the new trial the returns on the writs of attachment are such as to vest jurisdiction, and no new facts appear, the judgment should be for the plaintiffs.” (29 Kas. 515.)

In view of the careful consideration that the facts and the law of this case have already received at the hands of this court, and also in view of the carefully prepared opinion of the learned judge of the trial court, we deem it unnecessary to discuss at any great length the volume of testimony taken.

Counsel contend with great force and some plausibility that upon the new trial new facts were developed, and therefore that the facts are changed so as to call for new and different conclusions of law.

We have carefully read the one thousand pages of written record, and find that with the exception, of the amended returns, and some minor but unimportant testimony connected with the alleged bankrupt title, the case is the same now as when first presented. The trial judge in his written opinion said:

“The facts and questions of law presented and insisted upon by the parties are numerous, but the issues of fact here presented are not different from the facts as presented in the case when it was before the supreme court, and there is but one question which we now propose to examine here, and we shall regard all other questions of law as settled in this case by the supreme court. A full statement of the questions which we regard settled will be found in the report of the case in 28 Kas. supra. And as the facts are the same now, and the law has been applied to them, these questions are settled as the law of this case.

“The question unsettled in this case arises on the returns of the sheriff indorsed on the two orders of attachment, and through which the plaintiff claims title to the premises in question. Since this action was tried in the district court of Wyandotte county and heard in the supreme court, the sheriff has amended his returns to these orders of attachment by affixing his signature to the same.”

1. Case, followed. The plaintiffs below, defendants in error, claim title, as upon the former hearing, under judicial sales had upon attachment proceedings against Joseph E. Snyder. The defendants below, plaintiffs in error, claim title, as upon the former hearing, under a deed from the bankrupt court in which Joseph E. Snyder had filed his voluntary petition in bankruptcy. The deed from the assignee in bankruptcy was dated October 20,1871, and recorded October 27 of that year. The attachment proceedings against Snyder were commenced May 16, 1874. The deed of Joseph E. Snyder for the land in dispute was not executed until April, 1869, more than a year after he filed his voluntary petition in bankruptcy. The law of the case as to the bankrupt title is clearly stated in ~ . . . T_ _ _ _ _ the report or this case, m 28 Kas. 825, and we are inclined to follow the law as there applied.

It is urged that the opinion heretofore delivered in relation to the bankruptcy proceedings and the title thereunder, was extra-judicial. When the case was here in 1882, the only defect apparent in the title of plaintiffs was the omission of the signature of the officer on the returns of the orders of attachment. We held that the Returns might be amended, but reversed the case. In order to direct the court below as to the law of the case, if the returns were amended as suggested, it became the duty of this court to discuss and apply the law upon the facts then presented concerning the bankruptcy proceedings and the title claimed thereby.

As the bankrupt title was prior in time to the title claimed under the attachment proceedings, it was necessary for this court to examine that title, because if that title were valid, then there was no necessity of entering upon any consideration of the title under the attachment proceedings, so the bankruptcy proceedings were in the record and the discussion of the title derived thereby was not wholly dictum or extrajudicial.

Again, it is urged that this court should follow the decision of Mr. Justice Miller in the suit of McAlpine v. Tourtellott, decided in the United States circuit court on June 8, 1885. (1 Kas. L. J. 330.) The opinion was delivered upon the dismissal of a bill in chancery to quiet the title to this and other land. The opinion is somewhat conflicting with the views expressed concerning the bankrupt title in 28 Kas., but the bill in that case did not disclose all the facts testified to and found by the trial court in this case, and we believe when this case is fully examined and considered by the United States supreme court, the views expressed in 28 Kas. will not be dissented from by the able and distinguished justice who decided the case in the United States circuit court. This court, however, is not bound to follow the opinion of a judge of the United States circuit court, even if that judge be a member of the supreme court of the United States. The United States circuit court is a court of inferior, not of superior jurisdiction to this court. Upon the findings of the trial court concerning the bankrupt title, notwithstanding the opinion of Mr. Justice Miller, we perceive no good reason to change or modify the views previously expressed by this court of that title. Among others, the following are the conclusions of the trial court that relate more specifically to the title under the bankrupt proceedings:

“3. That on December 2, 1867, when the said Snyder filed his petition in bankruptcy in the district court of the United States for the district of Missouri, the said Snyder was not the owner of the legal or equitable title, or any estate in the premises described in the plaintiffs’ petition.

“4. That on April 13, 1869, after the said Snyder had been adjudged a bankrupt in the court of competent jurisdiction aforesaid, Snyder acquired the legal and equitable title to the premises described in the plaintiffs’ petition from the said David E. James, by virtue of the deed of conveyance described in conclusion of fact No. 8, and that the said premises were no part of the estate of the said Snyder at the time he was adjudged a bankrupt, and that therefore the district court of the United States for the district of Missouri, sitting as a court of bankruptcy, had no jurisdiction to sell or dispose of the said premises to Byron Judd, and the sale of said premises described in the deed of conveyance, made by the assiguee in bankruptcy to Judd, conveyed no title, legal or equitable, to said Judd or to those holding under him.”

It is claimed by counsel for defendants below, that as thpy claim under a sale in bankrupt proceedings, and as they purchased, as they allege, bankrupt assets, that the decision of this court upon that title can be reviewed by the supreme court of the United States. In order to facilitate this result, we make the express ruling that upon the facts contained in the record and the findings of the trial court, the defendants below have no valid claim or title, legal, equitable or otherwise, from the assignee in bankruptcy of Joseph E. Snyder. If a federal question is involved it will be ultimately decided by the supreme court of the United States, and if we have committed any error it can easily be corrected. This brings us to a consideration of the attachment proceedings. We may premise before discussing these, that we are not called upon and cannot reverse or modify the attachment proceedings in the cases of Seegar v. Snyder, and Welland v. Snyder. These cases have never been brought to this court for review or reversal. The district court of Wyandotte county permitted the returns on the orders of attachment to be amended, and the signature of the officer has been affixed thereto. We must therefore take these returns for what they are worth. They stand before this court exactly in the same condition as if the officer had signed the returns on the orders of attachment when he first filed them with the district clerk. The reasons that the district court of Wyandotte county gave for not allowing further amendments are wholly unimportant at this time, and the attachment actions stand or fall upon the record and the returns as amended. We may also, in this connection, remark that the attachment actions are not attacked directly, but only collaterally, and collateral attacks upon judicial proceedings are not favored. Irregularities alone are not sufficient to destroy the validity of judicial proceedings, nor are mere omissions from the record. (Head v. Daniels, 38 Kas. 1.)

In the case of Seegar v. Snyder, one of the cases upon which the plaintiffs’ title rests, the return of the officer, after the statement of receipt of the order, is as follows:

“On the 16th day of May, 1874, at my county, I attached as the property of the within-named Joseph E. Snyder, as described in the appraisement hereto attached and made part of this return, by declaring on the premises that I attached said property at the suit of the within-named Henry R. Seegar, and by taking the same into my possession, and now hold the same subject to the order of the court; and with F. W. Drought and S. Bolmer, two householders of my county, who were by me on the same day first duly sworn to make a true inventory and appraisement of all the property so attached, I made a true inventory and appraisement of all the property so attached; and which said inventory and appraisement is signed by the said householders and by myself, and is returned with this order; and on the same day I left a true copy of this order.”

The return in the case of Welland v. Snyder is precisely the same as the foregoing, except as to the name of the plaintiff, and that the attachment was subject to the attachment in the case of Seegar v. Snyder.

In Head v. Daniels, supra, it was said by Mr. Justice Valentine, speaking for the court:

2. Judicial proceedings; collateral attacks, presumption. “In conclusion, we would say that collateral attacks upon judicial proceedings are never favored; and when such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid. Irregularitieg aioae are not sufficient to destroy the validity of judicial proceedings; nor are mere omissions from the record. On the contrary, it will generally be presumed, in the absence of anything to the contrary, that all that was necessary to be done with respect to any particular matter, by either the court or its officers, was not only done, but rightly done.”

In that case, the officer did not state in his return on the order of attachment that there was no occupant of the premises, and it was claimed under §§ 198-205 of the civil code, that thereby the proceedings were void.

Upon the presumption that an officer does his duty, and in the absence of anything to the contrary, that he did his duty in serving the order of attachment in that case, it was held, that although the officer in his return omitted to state that there was no occupant upon the premises attached, the proceedings were valid.

In Dunlap v. McFarland, 25 Kas. 488, it was said, among other things, that —

“ It is also claimed that the sheriff did not leave with the occupant of the premises, or, if there was no occupant, then in some conspicuous place on the premises, a copy of the order of attachment. Now it is not shown that the sheriff failed in this particular; nor does it appear that the matter was called to the attention of the court below. The motion to set aside the service did not specifically point out this objection. Under such circumstances, it will be presumed that the sheriff did his duty. But even if he did not, still no harm was done, nor any loss suffered on account thereof, for the defendant seems to have known that his property was attached, and must have known from the return of the sheriff precisely what property was attached.”

Notwithstanding the case of Sharp v. Baird, 43 Cal. 577, referred to in the 28th Kas. and also in the 29th Kas., the later decisions of the supreme court of California tend strongly to uphold the validity of the attachment proceedings.

In Porter v. Pico, 55 Cal. 165, it was held that—

“A return upon an attachment [or other mesne process] that the officer duly levied the same, is defective in not stating the acts done by the officer in making the service; but such a return is prima facie sufficient to show a due execution, though the presumption may be controverted.”

In Anderson v. Goff, 72 Cal. 65, it was decided:

“The regularity of the levy of an attachment is sufficiently shown, as against a collateral attack, by the return of the attaching officer reciting that he had duly levied the same upon all the right, title and interest of the defendant in and to certain described real estate.”

And in Davis v. Baker, 72 Cal. 494, the syllabus reads as follows:

‘“Under section 542 of the code of civil procedure, the levy of a writ of attachment upon real property may be made by posting the attachment papers in a conspicuous place on the land, if the sheriff, at the time of visiting the land for the purpose of making the levy, cannot find any one visibly oc'cupying the property.

“The return of the sheriff to the writ of attachment in question recited that the sheriff, on a specified day, duly levied the same upon the land thereinafter described, by posting a copy of the writ, attached to a notice, notifying the defendant that said property was attached, on the premises.’ On the trial, the sheriff testified that the papers were posted on a building which was on the land. Held, That the return was prima facie sufficient to support the levy, although it did not state that the papers were posted in a conspicuous place on the land.”

The facts in that case were substantially as follows: The California statute requires the'sheriff in attachments to leave a copy of the writ, description of the land attached, and notice, with an occupant of the property, if there be one; if not, then by posting in a conspicuous place on the property attached. One-half of a town lot 33 feet front by 132 feet deep was attached. One Ashbrook had at the time of the levy an office on the lot in a small building 12 by 15 feet. The sheriff testified that when he went to the property there was a table and a chair or two, and a light burning in the office, but he found no one in the house; that he waited awhile, but no one came in, and then he posted the papers on the house. The trial court on the collateral attack held the levy bad, and that no title passed under the attachment.

The upper court reversed the decision, and in the opinion said:

“The officer is required to execute the writ without delay. Promptness is generally essential to the beneficial use of the writ at all. The sheriff would be held responsible for any lack of diligence by which loss would accrue. It is not always easy to find out who is in possession of property. In view of the promptness required it must have been intended that the occupant should be easily discoverable, in fact, some one visibly occupying the property, so that when the officer visits the property for the purpose of completing the levy he can determine then by what he can see whether he shall serve the copies by leaving with an occupant, or by posting. If the word ‘ occupant’ means simply one in the actual possession of land, there would be a large amount of such property not declared to be exempt, and yet which could not be levied upon. One may be in the actual possession, and yet not be in the county or state, and there might be no other occupant. In such case there could be no levy if the position of respondent be correct. One fearing an attachment would have but to lock up his place and go out of the county to be beyond, the reach of the writ so far as his real estate is concerned, of which there was no other occupant. . . . The provision as to an occupant is a direction to the officer as to posting when he goes upon the land to complete his levy: if he find an occupant, he must leave the copies of the papers with such occupant; but if he can find no such occupant, he must post them in a conspicuous place upon the land.”

3. Attachment; service of order; presumption. Without referring to other authorities, it seems to us sufficient to say, that as the orders of attachment were properly issued, and as the returns on the orders of attachment show that the officer attached the property, that he in fact took possession of the same and left a true copy of the orders of attachment, no fatal defects appear in the attachment proceedrr ^ L ings. We must presume, in the absence of anything t0 the contrary, that all that was necessary to be done with respect to the service of the orders of attachment by the officer, was not only done, but rightly done. [Head v. Daniels, supra.)

Within the case of Davis v. Baker, supra, if there was no one visibly occupying the property attached at the time of the service of the orders, copies of the orders might have been left in a conspicuous place thereon. (4 Kas. L. J., supra.)

The judgment of the district court will be affirmed.

All the Justices concurring.