Bank of Missouri v. Matson

Napton, Judge,

delivered the opinion of the court.

In this case the bank relies on the nullity of tlie writ of attachment to show that no- lien was acquired, and therefore that she was exempt from the operation of the rule that a creditor who gets a lien on the property of the principal debtor and voluntarily lets it go discharges the security. The question of diligence or negligence on the part of the bank is not in the case. That doubts may have been with propriety entertained in relation to the validity of this writ of attachment is quite manifest, and we should be very reluctant to hold the bank to a forfeiture of her security merely by reason of a wrong decision upon this point.

Few questions in a lawyer’s practice could arise more embarrassing in their determination than such as require him to fix upon the line where a writ ceases to be a nullity and is merely erroneous. Decisions-have fluctuated, and contradictory cases may be found. Neither ancient nor modern cases point out very clearly a rule by which such questions can be decided. I will briefly advert to some general principles which in my judgment ought to control the decision of such questions. Mesne process, whose object is notice, ought to be governed by different rules from final process ; and the adjudged cases keep this distinction in view. Final process has been always construed with favor, where mistakes have no tendency to oppression. It is important that the officer should be protected, and that the purchaser under an execution should get a good title. The writ of capias, whether used as mesne or final process, has always been construed with strictness for obvious reasons which have no application to our writ of summons. A distinction may also reasonably obtain between writs issuing from courts of general and those emanating from courts of limited jurisdiction. There is sound policy in requiring justices of the peace to conform closely to the statutory power confided to them, not with reference to the mere forms of their proceedings, but with reference to the line of their jurisdiction. Writs *248 issuing from courts of record, where proceedings are more dilatory and are under the supervision of the judges, the bar, and the public, may properly be regarded with more leniency.

These considerations will probably show that the cases of Sanders v. Rains, 10 Mo. 770 , and Milburn v. Gilman, 11 Mo. 64 , are not conflicting. Neither of these cases is however decisive of the question here. The writ of attachment, although containing a clause of summons, and although usually and in this instance the commencement of proceedings, is really more nearly allied to final than to mesne process. It is substantially a writ of execution, except that it émanates at the beginning instead of the termination of a suit. Its object is to seize and hold property subject to the claims sued on and to satisfy them. The suggestion of the counsel for the defendant in this case, that the validity of the writ of attachment ought not to depend upon the validity of the clause of summons contained in it, is entitled to consideration. It may seem novel, and the statute makes the' clause of summons an essential portion of the writ of attachment, but in effect they may be regarded as two separate writs, and with separate objects — the one directing the officer to seize property as a security for the creditor — the other directing the officer to advise the debtor of what has been done. Of course the court will not permit the property seized to be subjected to the payment of the debt, unless the debtor is legally advised of the proceedings ; but it is not perceived why the invalidity or total nullity of the summons should necessarily make the attachment also a nullity. The summons is a constituent part of the attachment and may be conceded to be a mere nullity; yet it does not follow, for this reason alone, that the attachment is void, and the levy under it illegal, and the officer a trespasser. The defendant may appear, the writ may be amended, or a new summons issued. All this only tends to delay the creditor, not to oppress the debtor. If the property has been improperly attached, the statute has provided an ample remedy in the bond and security required of the creditor.

*249 If the writ in this case had been a simple summons and made returnable sooner than the law authorized and a judgment by default was taken, the validity of such a judgment might be questioned. But that is not this case. The writ of attachment is made returnable at a day earlier than by law is warranted. Under this writ property is taken and the party defendant summoned. So far as the summons is concerned it may be regarded as a nullity, although we would not be understood as so deciding; and yet the remainder of the writ, under which the levy is made, does not necessarily fall with the summons. It is like an execution, and ought to be governed by the rules which are applicable to executions. An execution returnable at a day later than by law it should have been has been held only voidable. (Milburn v. Gilman, 11 Mo. 64 .) To hold the attachment a nullity is to make the officer and all concerned in its levy trespassers. We see no injury which can result from considering the writ only voidable.

The instructions offered by the plaintiff, which sought to put to the jury the fact of diligence on the part of the bank, would have been appropriate, if any testimony on this subject had been submitted ; but the bank offered no evidence on the subject. The plaintiff produced the writ of attachment and its levy; proved the voluntary dismissal by the bank, and that the bank had been verbally requested by the defendant to institute this suit; and there the testimony ended. The bank offered no evidence in rebuttal, but relied on the invalidity of the writ. The whole case turned upon this question in the court below, and no testimony brought up the question of diligence. Whether the bank acted with due diligence does not appear. Whether she was advised to pursue the course she took by her legal counsel — whether she communicated to the security the steps taken in dismissing the writ — whether any effort, was made to amend or sue out a new writ — nowhere appears. Prima facie a case was made out against the bank. Her course might have been perfectly justifiable in dismissing an attachment, which was *250 certainly voidable and might have been on good grounds esteemed void; but the defence is not placed on these grounds. It was relied on that the wñt was void, and we are not disposed to say that the writ was a mere nullity.

As to the knowledge of the bank that defendant was security at the time the note was given, it is not perceived how this circumstance has any bearing on the case, since it appeared that the bank was aware of this fact when the attach•ment was sued out. The instruction which put to the jury the hypothesis that the property secured under the attachment was insufficient to pay the debt was properly refused, as there was no evidence to warrant it.

Judge Scott concurring, the judgment is affirmed; Judge Richardson dissents, being of opinion that the writ of attachment was void.