Churchill v. Goldsmith

Campbell, O. J.

Goldsmith brought into the circuit *251 court for the county of Oceana a justice’s judgment, which-was affirmed. He brings error on the affirmance.

The suit was commenced by attachment, which seems to have been regular, but not personally served. On the return-day plaintiff appeared by attorney, and, defendant not appearing, the case was adjourned for 30 days. In the meantime a motion was made before a circuit court commissioner to dissolve the attachment under the statute, and he made an order dissolving it, from which Churchill appealed. Pending this appeal, the case came on at the adjourned day before the justice, and he gave judgment for plaintiff.

As the statute positively requires an adjournment when the defendant is not personally served and does not appear, we do not think it of any importance in what way the plaintiff appeared on the return-day. 1 On the adjourned day we must assume from the docket that the appearance of plaintiff was ■ regular. 2 If so, the only question left is whether the pendency of proceedings for dissolution had any effect on the action before the justice.

We can find nothing in the statute which provides for any such interference with the main suit. Where there is no per- ■ sonal service, the attachment judgment can only bind the property, and, if the attachment should be ultimately dissolved, of course the judgment must fall with it. But these proceedings may easily last long enough to oust a justice of' jurisdiction, and might therefore be resorted to for delay, to the detriment of right, if they suspended the main action. Th e statute does not provide for any such suspension, and the main issue, on the merits, would not be affected by anything which would be litigated on the motion to dissolve. There *252 is no provision which compels or authorizes the justice to take notice of these collateral proceedings, until brought before him in some responsible shape, and this was not done in the present case. But, had it been, they would not have barred his action.

"We see no error in the record, and the judgment must be affirmed.

The other J ustices concurred.

The docket shows plaintiff’s appearance on the return-day by his • attorney, but contains no statement that the attorney swore to his • authority to so appear.

The docket entry is as follows : “ June 30, 1886, 10 o’clock A. M. Cause called, and plaintiff appeared, and defendant did.not appear and after a delay of one hour I did thereupon proceed to hear and. try said cause.”