dissent">

DISSENTING OPINION.

MILLS, C. J.

I regret that I can not agree with the conclusions reached by the majority of my brothers in deciding this case.

This is a suit in ejectment and by it the appellant sought to eject the appellees from the mining claim in question. On the trial the record in the case of Taliaferro v. Dye, a proceeding in attachment, under the sale in which case appellees claim title, was introduced in evidence, over the objection of appellees’ counsel, to show that the proceedings in that case were not regular and that the judgment giren in it was void.

It can not be successfully denied that this is a. collateral attack upon the judgment given in the case of Taliaferro v. Dye, nor can it be denied that that was a proceeding in rem or a quasi proceeding in rem, where it was sought to subject property of Dye, in this Territory, to the payment of a debt, Dye being absent, so that no personal service could be had upon him.

The principal points relied upon by appellants to reverse this case relate to defects which they allege were committed in the attachment suit of Taliaferro v. Dye. They are:

I. That under the laws of this Territory there is no authority for the issuing of an alias writ of attachment.

II. That the notice of publication of pendency of suit, was not such as to- give the court jurisdiction to render a judgment; and,

III. That no notice by publication was given when the interest of the defendant, Dye, in the mining claim was attached, under the alias writ of attachment, and which interest was subsequently sold.

I will first consider whether or not alias writs of attachment can be issued in this Territory. The issuing of such alias writs is not directly provided for by any statute which I have been able to discover. The only section which would appear to authorize their issuance is the general power given to courts in section 2727, Compiled Laws of 1897, which reads in part as follows: “From the time of the issuing of the order of attachment, the court shall be deemed to have acquired- jurisdiction, and to have control of all subsequent proceedings in relation thereto.” Certainly, there is no positive law of the Territory which forbids the issuance of such alias writs. I can see no good reason why they should not be allowed to issue in proper cases, as for instance when the first writ has expired without being served, or when it has been lost by the officer before being returned, or when additional property belonging to the debtor has been discovered after the service of the first writ. Nor do I see any reason why an additional affidavit or bond should be required from the plaintiff, provided that the original ones are not defective and are in proper form. I am aware that the courts of the several States which have passed upon this question hold divergent views as to the right of issuing alias writs of attachment, when the issuing of such writs are not provided for by statute. A collection of the authorities on the subject of the issuing of successive writs of attachment will be found in 4 Cyc. 553, note 27. The reasons supporting the issuance of such writs are discussed in the cases of Hamill v. Phenicie, 9 Iowa 525, and Elliott v. Stevens, 10 Iowa 418. Not only does the weight of authority seem to predominate ill favor of the issuance of such writs, but I can see no good reason why alias writs of attachment should not issue, the same as alias writs in other suits.

In the case at bar, the record shows that at the time the original writ of attachment was levied on the real estate, that other writs of attachment had previously been levied on the same property by other persons who had claims against Dye. It seems to me that it would be manifestly improper to hold under the state of facts which exists in this case, that Taliaferro would be compelled to dismiss the suit already brought by him, and file a new complaint, affidavit and bond, before he could levy his writ on other property of the defendant Dye, which was unincumbered.

I will now consider whether the district court which tried the case of Taliaferro v. Dye, acquired jurisdiction over the property attached. In this Territory the district court is one of general jurisdiction, and if persona] service had been made there can be no doubt but it would have had jurisdiction. In the case at bar, if it did so acquire, it did so by substituted service or service by publication.

In commenting upon what notice is required in the absence of a defendant in Cooper v. Reynolds, 10 Wall. 816, the Supreme Court of the United States says:

“By jurisdiction- over .the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.

“Jurisdiction of the person is obtained by the service of process, or by the voluntary appearance of. the party in the progress of the cause.

“Jurisdiction of the res is obtained by the seizure under process of the court, whereby it is held to- abide such order as the court may make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the case.

“It is to be observed that in reference to jurisdiction of the person, the statutes of the States have provided for several kinds of service or original process short of actual seiwice on the party to be brought before the court, and the nature and effect of this service, and the purpose which it answers, depend altogether upon the effect given to it by the statute. So also while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the. court by the officer’s levy of the writ and return of that fact to the court. So the writ of garnishment or attachment, or other form of service, on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court.”

Holding that the district court of Lincoln county had jurisdiction of the subject-matter, and authority to issue the alias writ of attachment, by virtue of which writ the interest of Dye in the mining claim was subsequently sold, I consider this court bound by the law as laid down in Yoorhees v. Bank, 10 Peters 449, and Cooper v. Reynolds, 10 Wall. 308. In speaking of Voorhees v. Bank, where the defendant, like the appellees here, held real estate by virtue of a sale made under attachment proceeding, the court says:

“Against a non-resident who had never been served with process or appeared in the case, no affidavit was produced, nor publication of notice nor appraisement of the property, but it was condemned and sold without waiting twelve months from the return of the writ, and without calling him at three different time terms of could, all of which are specifically required by the act regulating the proceedings in Ohio, where they were had. This court held that there was sufficient evidence of jurisdiction in the court which rendered the judgment, notwithstanding the defects Ave have mentioned, and that they were not fatal in collateral proceedings.” Cooper v. Reynolds, supra, and in the same case in speaking of the publication of notice the court says: “So also of the publication of notice. It is the duty of the court to order such publication, and to see that it has been properly made, and undoubtedly, if there had been no such publication, a court of errors might reverse the judgment.

“But when the writ has been issued, the property seized, and that property condemned and sold, we can not hold that the court had no jurisdiction for want of a sufficient publication of notice.” The rule as laid down in these cases has been constantly followed by the Supreme Court of the United States and by practically all of the Federal courts. In a case which came before the United States Circuit Court in Colorado', to foreclose a mortgage, in speaking of a suit brought in the State court of Colorado, in which a bill in chancery was filed, which, among other things, sought to set aside two judgments which had been obtained in the district court of that State in an attachment suit against certain mining property, on the ground that there was no service of process and no appearance by the defendant, Judge Hallett says: “From this, it seems that the Supreme Court of the State has reached the conclusion that the judgments obtained by Perkins and Noynahan were improperly entered; that is, that there was error in the record. But from some circumstances attending the case they have declined to vacate the judgments. It is difficult to perceive what effect that statement can have upon the position of the parties in this case and in this court. If it was stated that the Supreme Court had reached the conclusion that the judgments were void, and had declared them to be void, and set them aside upon that ground, we shall still be compelled- in this court to adhere to the doctrine first announced in the case, and which is found in Cooper v. Reynolds. The principle declared in Cooper v. Reynolds is of general jurisprudence, affecting all actions in Federal courts, and not at all controlled by any decisions that may be made in any court of any State.” Needham v. Wilson, 47 Fed. 97.

Appellants in their brief rely upon a number of cases from the State of Missouri to sustain their contention that the-judgment taken in the attachment case was void, and could be attacked collaterally. Their claims seem to be sustained by some of the earlier cases decided in that State, but however, in 1874, the Supreme Court of Missouri, says, in speaking of the lack of the sufficient publication of the pendency of a suit, before the rendition of the judgment (and I think that this case has not since been overruled), “The effect of a number of late decisions of this court is, that where in am attachment suit, the required affidavit and bond have been filed, and an attachment regularly issued, and land seized and levied on by virtue of the attachment, the court thereby acquires jurisdiction of the case as to the property attached, and that a judgment rendered in such case against the property attached will not be' void, although no sufficient publication is made; that the omission to prove publication is only an irregularity in the proceedings in a case of which the court already has jurisdiction, so far as the attached property is concerned, and that although a judgment rendered in such case might be set aside for irregularity in a direct proceeding for that purpose, yet the judgment would not be held absolutely void in a collateral proceeding.” Johnson v. Gage, 57 Mo. 165.

I am aware of and have no desire to criticise in any manner the opinion rendered by this court in the case of Smith v. Montoya, 3 N. M. 13. In that case this court held that a notice by publication in almost the identical words used in this, except as to parties and amount of debt, was not good, and that a judgment rendered in the case did not bind a garnishee, I think that the opinion in that case correctly states the law, but it was a direct attack on the judgment by one who had been brought into the case as a garnishee, and who took it up by appeal. In no sense can it be regarded as a collateral attack on. a judgment. I do not attack that case in any particular.

For the foregoing matters I dissent from the opinion of the majority of this court.

McFie, J., concurs in the above.

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