First National Bank v. Geeenwood

On a motion for a rehearing there were briefs by B. J. Stevens and J. D. Gurnee, for the appellant, and Bashford & O Connor, for the respondents. The motion was granted September 23, 1890.

On the rehearing, B. J. Stevens and J. D. Gurnee, for the appellant, contended that in order to create a lien by attachment it is indispensible that the officer omit no act in making the levy which the statute requires, and his return is the only proof thereof. First Nat. Bank v. Jasper Co. 71 Iowa, 486 ; Wilder v. Holden, 24 Pick. 8 ; Metcalf v. Gil- *278 lett, 5 Conn. 403 ; Tiffany v. Glover, 3 Greene (Iowa), 387. In this state it is essential to a valid, levy of a second attachment against the same defendant upon the same property, that the officer make the indorsement required by sec. 2736a, S. & B. Ann. Stats., on the copy of the writ delivered to the defendant, and make return of that fact.

For the respondents there was a brief by F. J. Lamb, of counsel, and oral argument by Mr. Lamb and Mr. H. W. Chynoweth.

The following opinion was filed March 17, 1891:

Lyon, J.

This appeal was decided at the January term, 1890, of this court, and the order of the circuit court from which it is taken was affirmed. A motion for a rehearing was afterwards granted. The argument on such rehearing was confined to the question of the effect upon the case of sec. 1, ch. 249, Laws of 1883, as amended by ch. 259, Laws of 1885, which will be found in S. & B. Ann. Stats, as sec. 2736a. Such section reads as follows:

“ In cases when two or more writs of attachment against the same defendant shall be executed on the same property, an inventory and appraisement shall be made in but one of the actions, and the officer executing such writs shall indorse on the copy thereof served upon the defendant a notice to such defendant that the property seized in such action is the same property seized in the action in which such inventory and appraisement are made, giving the title of such action; and such officer shall state in his return on such writs the fact of such indorsement.”

The attachment of the Greenwoods is unaffected by sec. 2736®, because it was first served. Hence, under the former decision of this appeal, it is valid, and the Greenwoods’ judgment should be paid out of the fund in the hands of the sheriff. The next attachment in order is that of the Rosen-baums, which, if valid, absorbs the balance of the fund in *279 the bands of tbe sheriff. The subsequent attachments stand upon the same grounds with the attachment of the Rosen-baums, and, if that is valid, so also are such subsequent attachments. No further reference to the latter attachments is required. Is the Rosenbaum attachment valid as against the bank, which subsequently levied its execution upon the attached property? If it is, the fund in the hands of the sheriff, being the proceeds of the sale of such property, belongs to the Rosenbaums. If not, it belongs to the bank.

The sheriff made return both to the Greenwood, and Rosenbcmm attachments on February 1, 1889. The return to the Greenwood writ complies fully with the requirements of the statute in that behalf (R. S. § 2736), and shows a valid service of the writ. The return to the Rosenbaum attachment is to the effect that on January 22, 1889, by virtue thereof, he attached the same property attached in the Greenwood, case (referring to the inventory and writ therein), subject to that attachment. Also that on the same day he regularly served on each defendant copies of the affidavit, writ, and undertaking in the attachment proceeding. Under sec. 2736a this return is defective in that it does not state that the sheriff indorsed on the copies of the writ served on the defendants a notice to them, respectively, that the property seized is the same seized, inventoried; and appraised in the Greenwoods attachment. The fact of indorsing such notice on the copies served not being returned, a'nd the particulars of the service being stated in the return in detail, we think the presumption is that no such notice was indorsed upon those copies. At least it cannot be presumed that such notice was so indorsed thereon. Blodgett v. Hitt, 29 Wis. 169 .

On the day the attachments.were returned (February 1, 1889) the defendants therein served upon the attorneys of the attaching creditors, pursuant to sec. 2745, R. S., a special answer in each proceeding, denying the existence of *280 the material facts stated in the attachment affidavits annexed to the writs. The first execution of the bank was levied upon the attached property February 2, 1889.

An attaching creditor obtains his lien upon the attached property by the issue of a writ of attachment and a valid execution thereof. The writ is executed when the officer seizes the property under it, and makes an inventory thereof. This is plain from the following clause in section 2730: “ The officer having the writ of attachment shall execute the same without delay by seizing so much of the property of the defendant, when the same can be found in his county, as will be sufficient to satisfy the demand of the plaintiff, with costs and expenses, and by making an inventory thereof.” But such lien is contingent. Its continuance depends upon the performance of conditions subsequent. In order to continue and preserve it, the other requirements of the statute, such as the appraisal of the property, and the service and return of the writ, must, unless they may be and are waived, be complied with, or the lien is lost. In that sense all these requirements are jurisdictional. In the Rosenbaum attachment proceeding the sheriff’s return shows an effectual execution of the writ, for it appears by his return that he seized the property previously seized under the Greenwood attachment, and refers to the inventory in that proceeding for a description thereof. Thus far he complied with secs. 2736 and 2737a, and the lien of the Rosenbaums on the attached property vested. But a condition subsequent, essential (unless waived) to a continuance of such lien, was not performed, to wit, a proper service and return of the writ.

The defendants were all personally served with the summons, and afterwards appeared generally to the action. They also appeared generally to the attachment proceeding, for indisputably their traverse of the attachment affidavit is such an appearance. Under all the authorities, such appearance in any civil action is a complete waiver of any and *281 all defects in the service and return of process. The vital question is, therefore, does a general appearance to an attachment proceeding waive like defects in the service and return of the writ of attachment? This question calls for some consideration of the nature and incidents of the proceeding.

Attachment is a provisional remedy in a personal action, which, although subsidiary thereto, is separate and distinct from the procedure in the action proper. It partakes somewhat of the characteristics of a proceeding in rem in a case where there is only substituted service, and the defendant does not make a general appearance. In that case, however, it is not a proceeding with general notice,— that is, one irrespective of persons,— which is the proceeding in rem proper, binding upon all the world, but a proceeding with respect to a particular debtor, requiring special notice to him, and binding him alone. Waples, Attach. 474. If, however, the writ is personally served, or if the attachment debtor appears generally, the proceeding is usually in per-sonam. Waples, Proc. in Kem, 723. Thus, in Cooper v. Reynolds, 10 Wall. 308 , speaking of an attachment suit, the court says: “ If the defendant appears, the cause becomes mainly in personam, with the added incident that the property attached remains liable, under the control of the court, to answer any demand that may be established against the defendant by the final judgment of the court; but, if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff.” This shows clearly that, in the opinion of that court, a general appearance by the defendant has the same effect that it does in a personal action proper, one of the incidents of which, as already observed, is to waive defects in the service and re *282 turn of process. Mr. Wade, in bis treatise on the Law of Attachment and G-arnishment, speaking of the effect of an appearance by defendant to challenge the truth of the facts alleged as grounds for the attachment, says: “ The defendant’s liability being fixed by the judgment, the property attached, if still within reach of the court’s process, may be subjected to the execution in spite of all the defects in the attachment proceeding prior to judgment. However irregular and insufficient the proceedings may have been to give the court jurisdiction in attachment, they cannot vitiate the conclusion reached in the exercise of its ordinary common-law powers, with both parties present.” (Section 44.) All this is in harmony with sec. 2643, R. S., which provides that “ a voluntary appearance of a defendant is equivalent to a personal service of a summons upon him.” In an attachment proceeding the writ performs the functions of a summons in a civil action.

Our own cases are in line with the above authorities. In Williams v. Stewart, 3 Wis. 773 , service of a writ of attachment was attempted to be made by publication of notice under the statute. The notice was fatally defective, but the defendant appeared and traversed the affidavit, -which was the basis of the attachment. Such appearance was held a waiver of the defect in the notice. In Thomas v. Richards, 69 Wis. 671 , the attachment papers were not served on defendant, because he could not be found. It was held that his absence was a .waiver of such service. Mr. Justice Cassoday, who delivered the opinion of the court, said: “ A statutory condition subsequent to the acquisition of jurisdiction may be dispensed with or waived; especially when such statute is for the benefit of the party waiving the same, and no public right or policy is thereby invaded.” In Wendel v. Durbin, 26 Wis. 390 , a judgment by default'was vacated because of the omission of a material fact from the return of service of the - summons: but *283 it is expressly said that tbe defect might have been waived.

There are many other cases in this court holding, more or less directly, the same rule. It is unnecessary to extend this opinión by further reference to them.

It may be said that the foregoing cases apply only when the defendant seeks to avoid the attachment or judgment, and does not apply when a creditor who has obtained a lien upon the attached property subsequently to that claimed under the attachment defectively served and returned claims the proceeds. We are not prepared so to hold. In this case the bank levied its execution while the attachment proceedings were in fieri, and we are inclined to think that it would be bound by any step the parties to the attachment proceedings might lawfully take therein, although affecting the jurisdiction of the court, and although taken after the levy of its execution. But, however that may be, the defendants appeared in the attachment proceeding, and thus waived the defective service and return, before the bank levied its execution upon the attached property. Under these circumstances, it is manifest that the bank is in no better position than the defendants would be in were they attacking the attachment.

It is believed there is no conflict of authority on the question of waiver here considered. We have examined very many of the numerous cases cited by the learned counsel f'or the bank, but we do not find in any of them that the question of waiver, as here presented, is determined or raised.

Considering our own statutes and decisions on the subject, as well as the utterances of the supreme court of the United States, and the doctrine laid down by elementary law-writers, whose treatises are constantly cited as authority, and believing the rule reasonable and just, we are constrained to hold that the defects in the service and return *284 of the Rosenbaum attachment were waived by the general appearance of the defendants in the attachment proceeding, and hence that the lien of the Rosenbaums upon the attached property was prior and paramount to that of the bank, and that they are entitled to the proceeds of the sale of- such property in the hands of the sheriff. It follows that the order of the circuit court must be affirmed.

By the Court.—Order affirmed.