Willets v. Ridgway

9 Ind. 367

Opinion

Perkins, J.

Suit by attachment against a non-resident. Judgment for the plaintiff.

Numerous objections are taken to the proceedings.

1. The complaint is said to be insufficient, in not alleging a demand before suit.

It avers that the plaintiff had called upon the defendant, requested, &c., and that the defendant refused, &c. This is a sufficient allegation of a demand in a case where one is necessary.

2. The affidavit is objected to.

It shows the nature of the plaintiff’s claim, the amount due, states that it is just, and that the defendant is a nonresident. The affidavit conforms to the requirements of the statute. 2 R. S. p. 64.

3. The cause was tried by the Court without a jury.

But non-appearance to a suit is a waiver of a jury. 8 Ind. R. 217.

4. Proof of notice was insufficient.

Section 287, p. 94, 2 R. S., points out, with precision, the mode of proving notice. It is not shown to have been complied with in this case.

5. The admission of a deposition is objected to.

That deposition is not made a part of the record. Kirby et al. v. Cannon, at this term

Footnotes

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(1).

6. The sheriff’s return to the writ is insufficient.

The return shows that certain real estate of the defendant was attached. It does not show that it constituted all of the defendant’s real estate in the county. See Marnine v. Murphy, 8 Ind. R. 272. It does not show, nor does the record, whether the defendant had personal property or not. But the statute (2 R. S. p. 66, ss. 164, 166) provides that “the lands and tenements, goods and chattels, of the defendant, subject to execution, shall be attached,” and that “the defendant’s personal property shall be first taken under the attachment.” And “if enough thereof is not found to satisfy the plaintiff’s claim, then his real estate.”

Now, it seems to us that the record should show that the statute had been followed. It should appear that search was made for personal property, and none found; or, if found, that it was taken. If, in fact, the defendant had personal property subject to execution, the order first to sell his real estate was illegal. The defendant being a non-resident, and not represented in Court, not having had actual notice of the pendency of the suit, could not show the fact at the hearing. Hence, he waived nothing.

In O’Brien v. Daniel, 2 Blackf. 290, it is said that “the ex parte nature of these proceedings requires a strict compliance with every statutory requisition.” In Leach v. Swann, 8 Blackf. 68, the judgment was reversed because the record did not affirmatively show that the householder called as an appraiser was a resident of the county. And in Marnine v. Murphy, supra, a reversal was adjudged because the attachment was not shown to have been actually levied in presence of a disinterested and credible freeholder, and the bond was a few dollars less than the statute required.

Had the defendant appeared and failed to raise these objections below, they might have been treated as waived.

Other questions have been presented upon which we shall now intimate no opinion. It is true that the constitution, by an unwise provision, requires that this Court shall give a written opinion upon every point arising in the record of every case — a provision which, if literally followed, tends to fill our Reports with repetitions of decisions upon settled, as well as frivolous, points and often to introduce into them, in the great press of business, premature and not well considered opinions, upon points only slightly argued; yet it is a provision not to be disregarded, though merely directory, like that requiring the legislature to use good English. But though the provision is not to be disregarded, it is to be observed according to some construction, and should receive such a one as to obviate its inconvenience and objectionable character, as far as consistently can be done.

It often happens that a point is raised involving an important principle, but of minor consequence in its bearing upon the particular case, while it presents the material question in some other pending cause. Now, to decide it in the case where, from its subordinate position, it is but carelessly argued, by one side or the other, if at all, and hence, perhaps, but hastily considered by the Court, is unjust to counsel whose subsequently pending cause is thus prejudged, without their being heard, and upon an argument on which they would be unwilling to rest it. It is this class of decisions which forms the bane of judicial reports.

I. W. Holeman, H. P. Biddle and B. W. Peters, for the appellant. J1 B. Niles and A. L. Osborn, for the appellee.

These, and other considerations, have led the Court to inquire — When does a question, in the sense of the constitution, arise in the record ?

We do not think it does so merely because it is raised by counsel, nor because it is presented in the assignment of errors. Nor, necessarily, because it is raised in a bill of exceptions. It must be a question, the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the Court to comprehend it in all its bearings.

Hence, it has been the frequent practice of the Court, in cases where a single point would put an end to a case, to decide that point and no other.

So, where a cause was necessarily reversed for one or more errors, and remanded for a new trial, which might be upon new issues, formed by amended pleadings, and with more or less evidence, points which were made upon the first trial, but might not arise upon the record, or were not so distinctly and satisfactorily presented by the record as they might be after another trial, have been considered as not necessarily and properly arising in the record, and have been passed. See 7 Ind. R. 610, 147; 8 id. 464, 335, 104, 73, 40; 3 id. 221.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

The case next following.