MELOY V. ORTON.
MELOY' tI. ORTON.
(Of,rcuft Ocrwrl, W. D. WfBcDnsin. May 30, 1800.)
ATTACHMENT-CO:NTINUATION OF LIEN P,ENDIKG ApPEAL.
In Wisconsin, ap appeal by plaintiff from a judlUDent for defendant on the merits, in a case in which an attachment has been issued on land, does not preserve the attachment lien pending the appeal,unless immediate notice of appeal is giv,en, a proper bone) tendc:red, and the lien continued by special order of the court.. Rev. St. Wis. § 2748, as amended by Laws Wis. 1881, c. 157, providing that, 'when defendant in the writ of attachment shall recover judgment in cases where real estate has been attached, the clerk shall certify the judgment to the register of deeds, who "shall enter such'certificate upon the records of his office in satisfaction of the lien of such attachment," is inconsistent .with the continuance of the lien proprl.a The lien of the attachment is discharged by the 1'l'lndition of a judgment against plaint-i1f, and cannot be continued by the failure of the clerk to perform the merely ministerial duty of certifying the j uilgment to the register of deeds.
SAME-DISCHARGE OF LIEN.
Rev. St. Wis. § 8061" providinlj\' that, on the giving of an undertaking on appeal from an Qrder "vacat\ng or m9dlfying" an attachment, the court shall order the a,ttachment to he continued, does not apply where the judgment is against plaintiff on the merits.
, In Equity. Motion for preliminary injunction. Wm. E. Carter, for complainant. Orton k OBborne. for defendant.
BUNN, J. This is a motion by the complainant, based upon tbebill of complaint, for a temporary injunction to restrain the defendant from selling or incumbering,during the pendency of the suit, a certain tract' of land which forms ,the subject of the suit, which is brought to title; Rnd the case turns upon the question of the continuance of an at-: tachment lien upon th El property in a suit in the state court during the pendency of an appeal froin the circuit to the supreme court, where' a judgment on the merits in the case where the attachment was issued went against the plaintiff in the trial court, and no 8ttperBedeaB or other bond ,was given or order made to continue the lien of the attachment during the pendency of such appeal. In Wisconsin, all actions are' commenced by the issue of a summons, and in cases upon contract, when (among other specified cases) the defendant is a non-resident of the state, an attachment may issue as a collateral proceeding, to attach and hold the defendant's property found in the state, to answer any judgment that may be obtained against him in the action. On the 22d of June, 1885, Elizabeth Lamar made an affidavit for an attachment in an action against one Frank Scales, stating that he was indebted to her in the sum 0[$6,000 upon contract, express or implied, and that he was a non-resident of the state of Wisconsin. This affidavit was made before a notary public in Chicago, Ill., and upon it a suit was commenced and an attachment was issued in LaFayette county, Wis., two days later, on June 26,1885, and a certain 60 acres ofland belonging to the defendant Scales was seized. Afterwurds, on August 30, 1886, the action wall tried by the court withv.42F.no.l0-33
out a jury, and a finding and judgment entered against the plaintiff, dismissing her complaint, and giving 'costs to the defendant. The record of the judgment was perfected on September 14, 1886. Nothing more was done in the case upon either side until some 14 months afterwards, when, on November 7, 1887, the plaintiff gave notice of an appeal from the judgment, and gave a bond for costs, as provided by section 3052, Rev. St. Wis. ,That section provides that, "to render. an appeal effectual 'for any purpose, an ,undertaking must be e:xecuted on the part of the ap,by linenst two. sureties, to ,the effect that the appellant will pay all costs. and damages which may be awarded against him on the appeal, two hundred and fifty 40l1ars. ", Section 3053 provides for;thegiving of a bond by the appellant in case he wishes to stay the execution of a judgment directing the payment of money. This bond was,J;lotgiven, nor was any step. whatever taken by the plaintiff at any time to continue the attachment lien, unless the Ilaked .appeal had that effect. On February 28, 1888, the case came on for hearing in the su· court, when the finding of the circuit court were N. W. 850,}IU1q.the, causesetit back to that court September 26, 1888,a judgment for furtber proceedings; and where was rendered in the circuit court for the plaintiff for $9,000 and upwards. On this judgment an was issued, and the interest which the defendant had in the land attached, was sold. on January 12, 1889, and the land bid in by Philo A. Orton, as attorney for the plaintiff. But in the mean time, on June 27, 1888, the defendant Frank SCales; sbldthe land by warranty deed to Edward D.MeIoy ,the com· plain'antinthi.e suit, who,as appenrs,was an innocen,t purchaser, paying ful1Cvalue for the land, unless the lien of the attachtnentcontinued duringtheipendency of tne appeal, and until final judgment was rendered in favor·oftheplaintiff,and the pendency of the appealwas constructive notice ;to him :ll>f the existence of the atta,chment lien. Two'questions have been argued as to the sufficiency of the affidavit,one, whether'it is enough to state, in the language of the statute, that the defendantisipdebted to the plaintiff upon contract, express or implied; anotherjwhether the machinery of the lawin such a case may be set in motion cin this state by an affidavit made two be·, fore a notary, public in another state. The courts in Michigan, under a ¥similar statute, seem to have held attachments void, issued upon such an affidavit.. I have· not found it necessary to decide, either of these questionsj and shall assume that the attachment was regularly issued, and disposer of the' question of the issuance of a temporary injunction upon the main question in the case. , Did the attachment constitute a lien upon the land when sold by the defendant in that action to the complainant'illdhisaction?.;: There seems to be very little authority by way ofadjudged.calle8upon the point, but, upon a careful consideration of all the provisions of the statute, I am satisfied that the contention of the plainaiit that\the attachment lien, if any existed,was lost before the' plaintiff in ,the base took steps to perfect his appeal, is correct; What 11Ils:given·thecourt more trouble than aJ;lything else :in the decision ·of
this question is the apparElnt absence of any express' provision in the Jaw for continuing the lien of the attachment during the pendency of the appeaJ.. Section 3061 provides that, "when a party shall give immediate notice of appeal from an order vacating or modifying a writ ofattachment, * * * he may, within three days thereafter,serve an undertaking executed on his part, * * * to the effect that if the order appealed from, or any part thereof, be affirmed, the appellant will pay all costs and damages * * * the adverse party may sustain by reason of the continuance of the attachment," and that, "upon the giving of snchundertaking, such court orjndge shall or'dertheattachment to be continued," etc. The contention of the complainant is that this ion applies to a case like this; while that of the defendant is that it clearly has no application to cases of appeal from a judgment on the merits, ahdthat,as there is no other provision for continuing the lien. none was necessary, except the general provision allowing an appeal t!> be taken within two years from the entry of Judgment. . I cannotisay I am satisfied with the contention of either party on this question. It seems to me the provision applies in terms only to the case ofan appeal from an order vacating or modifying the writ, and baS no application, unless by analogy, to the case where the injunction is dissolved by the entry of a judgment against the plaintiff upon the merits. And, the attachment being a proceeding collateral to and depending wholly upon the action, itcnnnot exist without that; and when the action itself goes down the attachment goes with it, unless continued by special order of the court. And there are other provisions of the statute which seem quite inconsistent with the idea of the lien continui.ng prapria vigore, without such an order. Section 2748, as amended by chapter 157, Sess. Laws 1881, provides: "Whenever the action shall be dismissed or discontinued, or the defendant in the writ of attachment shall recover judgment, all the money or property held by any writ of attachment shall be delivered up to him, subjt>ct to the plaintiff's rights on appeal, and he may maintain an action 'on the plaintiff's undertaking for the damages assessed, as sustained by reason of the writ of attachment, and his costs; .and in cases where real estate has been attached, upon the entryof final jUdgment in favor of the defendant in the action either on the merits or on discontinuance or dismissal, or on satisfaction of a plaintiff's judgment. the clerk of the court shall certify the fact of such juilgment or satisfaction; and, on filing such certificate with the register of deeds in any county in which lands attached in the action are situated, such regiSter shall enter such certificate upon the records of his office in satisfaction of the lien of such attachments." This provision seems wholly irreconcilable with the notion that the lien of the attachment continues during the two years allowed for an peal from the judgment, without any 8upersedeas bond or undertaking of any sort being given, and without any order of the court made thereupon continuing the attachment. The purpose of attaching the property. and taking it out of thepoBsession and control of the defendant and keeping it in the custody of the lnw, is to have it forthcoming and available to answer any judgment the plaintiff may recover in the action j
and, this. being so, it is absurd to s\lppose that the law should provide, upon rendition of a judgment against the plaintiff, that the property so seized anould immediately be delivered over to the defenda.nt, but that the lien pf the attachment should nevertheless continue as though it had not been. so delivered over, but had been kept by order of the court in of the officer during the pendency of an appeal to answer any judgment the plaintiff might finally recover. Blit it is claimed by defendant that such is the effect of the words, "subject to the plaintiff's rights on appeal," and I confess it is somewhat difficult, under any intyrpretation.tq give proper effect to these words of the statute. But, whatever their' n1eaning and effect may be, it seems that they cannot be given a meaning to suit the contention of the defendant. It cannot mean that money and personal property is to be delivered over to the defendant, who is to be thereby clothed with a,ILthe indicia of absolute ownership, including the possession and immediate personal with power to or mortgage to an innocyntpurchaser, and the lien of the. attachment still continue. It canpot mean" in case of real estate, that the clerk shall certify the fact to the register that judgment has gone for the defendant,and make it the dutY,of the register to enter such certificate of record in his office in satisfaction of the lien of the attachment, and that the lien, notwithstanding all this, shall continue until the plaintiff's time for appealing has elapsed, in case he shall finally choose to appeal. The most rational been ,able to give to the words is this: that if the plaineffect that. tiff, uppntherendition of judgment him and ·before the property is delh:ered<over by the sherifI', slwllgive immediate notice of appeal, and proper bond, perhaps analogous to that referred to by section 3061, to pay all costs and damages that may be awarded against him, to prosecute his appeal, he to an order continuing 'the attachment until the determination oithe case in the supteme CQUllt, and requiring that the property be continued in the custody of<theshel'iffduring the pendency of the appeal. If,this is not the meaning and to be given to the words, I am quite at a loss to suggest ariybetter or more plausible interpr.eta.tion. In this Cllse nO such certificate made by the clerk, and no entry madeip th.e office discharging .the attachment. But I cannot think the failure of the clerk to perform such a clerical and ministerial duty can at all effect the question ofthe continuance of the lien, as to third pefSl>nSOr between the parties. The delivery over of personal property by the sheriff to the defendant is not what discharges the lien of thef,tttachrnent, b,\lt it is the rendition of a judgment on the merits against tbe pla;intiff in, the attachment.. It js not the bare entry on the f cords iJ;l,the, register's office which discharges the lien. But such entry of the 91erlt's 'certificate is to make the record to correspond with the actul:U iemphasized by the entry of the judgment, which of its own force diS<lh!J,Fgesthe lien, unless immediate steps. be taken to continue 'express provision for the, Ba,n;w;for·:! assume that, though there be .continuing . pf the attachrnentafter judgment in defendant's fa-
JUCK "'. FEWELL.
vor, there is no want of power in the court to continue it during the pendency of an appeal, provided the application be made immediately, and an undertaking given. The proceeding by attachment is a special proceeding, depending' wholly on the statute. It has sometimes been declared by the courts a harsh proceeding. It is certainly in derogation of the common law. It follows, then, that the lien created by it is just such and no other or more pervasive thaJi the statute makes it, and cannot be helped out to any extent by intendment. Where no warrant is found in the statute for the lien, it does not exist. The attachment being wholly collateral to the main action, a judgment against the plaintiff necessarily.vacates the attachment, unless it be continued and kept .uive by order of the court, made pursuant to law. As no such order in this case was made, I think the lien was gone long before the plaintiff's appeal was taken. and before the sale of the land to the complainant. The case cited most in point to favor the complainant's views is Loveland v. Mining 00., 18 Pac. Rep. 682, recently decided by the supreme court of Oalifornia. The case of Harrison v. Trader; 29 Ark. 85, seems to be an authority for the defendant. A temporary injunction will issue aa prayed fur in complainant's bill.
(mnn&U Oourt, W. D. Texaa, Et Paso DfJlJi8okm. October 28. 1889.)1
LnnTATION OJ' AOTIONS-ADVlIlBBE POSSESSION-PAYMENT OJ'TAXES.
Failu.re'to pay taxes by one claiming land by such adverse possession after the five years have expired cannot affect his title. Iinee all right of action against him is then barred.
At Law. Trespass to try title. Teel, Merchant &- Wilcox, for plaintiff. Davis, Beall & Kemp, Nugent & Stanton, and Brack & Neill, for defend'
MAXEY, J., (charging iMjury.) This suit of trespass to try title was originally brought by Mrs. Ida Juck and her children against W. J. Fewell, M. J.McKelligan, James P. Hague, S. G. Cowdry, O. T. Bassett, and Simon Kinsella to recover lot No. 35, situated in: the oity of El Paso. At ll. former day of the present term, and during the trial of this cause, the court permitted the children of Mre. Juck ,&0 take
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