130
yol. 51.
of] that contraotjthat the defendants J;1otitle.rlght,Qr interest in said1 realty j and that,oompltl.inantsraretherefore to a decree ramoving the clouds ,cast upoldheifltitle by to the defennailtsand described in;theplelLdings,and the title of llRid, complainants in and ,to ' said, l'ealty /lgllinst, the: ad verseclaims8sserted tMretobythe defendants he1'ein., ,,'the ..,ppealed from is thereforeaffirmed't, at costa' of i apPQlIaAts. , : l." I,
'J(
I!
i
PBoPLE'8 :, S;AV. RAitt (&: T:RUST Co. v. i
BATCHELDER
EGG CASE Co.
I ' : ; (Ottwu 'r ,\;'
CowI1 qf Appea18. E1.ghth CirouU. JuQr 60 1892.) No. 'lO.
" 'o:ahtt'8 Oi/r.Ark.§488,provided that an attachment tor a debt Dot due might be gr,ante4,b1 , ,,' b1 Whl,011, the action was brought, or, by the judge thereof, or , 80me )l"1ge. Section 439 required that the order of the court or judge grant. , ' lng',t,he, attiChtn,',ent 811"',OUI,d, 8pwi, ' 'fy,the, am,ount,'for WhiCh, It was allOW,ed. By the aot (.Mp.nsf. 8ectlon 438 was, aIQended by conferring on the ,jOf clerk O! the&;urt tbe llameauthority to grant 8uch an attachment as that posse8sed , ",b"y, th8, ',CO,u'i't( ol:' ljUdg 6.. tha,t, til"e PU,rp08e of ,t, 8 ,reqUire,ment that t,he orde,r '; qr 81¥!lllPi such being, the clerk might know what 8um to'lnllert In the attacblDent,lt was not neceIBary that the clerk, when the att,i4chment 'wu allowed' byhlJi1l1elf. should make lUI, order 8pecifying the amount for which it :was aUowe4,\ .. U 868,861. , " In tbeBUb'sequent comlIilatlon of 'the statutes of Arkan8a8 known as" Man8f1eld'8 Dlge8t," the word "clerk" i8 inserted In the former provision of Gantt'8 Dig. S 439, 80 as to reqUire that the order of the court, or tbe clerk or judge, granting ,the atthe It Is allowed, (Mansf. Dig, § 863,) and provldell: ,(Mm-ion 864), that" oI;d,er of, attachpieIlt, as,grant!ld by the court, or the Clerk' orjudgeJ", 8hll.lInot, be '!llsuedby tbe olerkuntil a bond has been filed. BeZd,'Ulatthe wora !&clerk" walln8erted In these ti'Wo sections (Mansf. Dig. §§ 868, 864.), wlthoilt !egislatlvesanctloll,:unleall authorized by a' proper construction of the aot of, ,M.aroh 18, 1881 ,{Mansf.mg. §8lf.,3,)andtbat 8uch construction was not authoriZ\ld,aI it a, and unnecessary proceeding to require the clerk, wbenlie iS8ues an attachD'lent;to' certify to hm8,Illf the amount for whioh he hall allowed it. " 11;,
1.
oj CL1IlBB:.
be conceded that th8.tatute doe81'9Cluire the clerk to first make ,8uch an order, an t8slled,by him It :would not be Invalid, under the ruling's'oftliIl8tate BUPr:eme court, the proceeding by attachment, hke any other olvilactlon, may be amend'(ld In matter of sUbstance, as well as of form, atevery 8tage of the,cas"e. all,' e,1'rQ, 0,r,', def,ecta nO,t iniU,riously the 8ub8tantial ", ,rights will ' Mansf. D'ig. '§ 541'; county clerk 8hall keep hl8 office at the count! seat,shall kllep *e 8eals, aJP Property belonging to ,hi8 offi.ee. and 8hall there traD8Bct1ils, business:: ,HeZd, tlla'll thI8 does not render VOid offiCial acta i, perf, ":,liT. the his offiee, 8,'uch 811 Iuuing", writ. of , &lid atRilng r..y.ere¥> }lIS official seal., I. S.urB. "n Jl' ,: i,' ' , ' " , ' Manst:. Dill:. Mk. 5 4,1167, provtA'8 ,that a civil action: 18co;nmenced by filing in the oftlce of a ",n,l'l, c",using a SllmmOn8 to be Issued thereon. Sec, tlon 5808'deoll\re8 that no summobl!l or order for a provisional remedy shall be issued 'the clllrlt: ,HI, a.ny aoUQll tlle :complaint or petition "i8 filed In hi8 office." e/.d, this require that, the complaInt shall be actually lodged withlu e Wa1l8 of the oflfce before theis8uance of the writ, and where the elerk, outside ,8f 11,11 oftloe a.nl'l;at, the of .n at,tornIl1. receivel aad u a com,. " . HIS OnIllB. , '
L,SA.lfB-TECHNICiolL DBJ'BCTIl.!"
,
' !
PEOPLE'S SA V· BMllt &''l'RUST CO. tI. BATCHELDll:R EGG CASE CO.
131
,affidavit, and bond for an attachment, .and thereupon signs and attests :writ .with. his official seal, delivers the samo to the marshal, and then immediately takes'tb,e papers to his office, the attachment is valid; especially as section 5083 declares thllt the court must, at every stage of the proceedings, disregard auyerrllr or defect which does not affect the substantial rights of the parties. . 6: SAMII.
Even if it be conceded that the writ was prematurely issued, these'rvicealld levY' thereof1>eoame effectu.al and binding ag'ainst the defendant" and all others who acquired no rights before the papers were actually lodged in the office. ,
,.
In Error to the Circuit Court of the United States for the Eastern District of Arkansas. Action commenced by attachment' by the People's Savings Bank & Trust Company against the Batchelder Egg Case Company, in thecircuit cO,urt, of Arkansas, and subsequently removed by defendant to the United States circuit court. That court declared the writ of attachment void, and rendered final judgment thereon against the plaintiff. Plaintiff brings error. Reversed. Statement by CALDWELL, Circuit Judge: ' On the 16th of August, 1890, the plaintiff in error brought suit by attachment against the defendant in the circuit court of Phillips county,' Ark., for $2,500, upon an indebtedness not then due, The defendant removed the case into the circuit court of the United States upon the ground of diverse citizenship. The Revised Statutes of Ar,k-ansas provide that an attachment may issue for a debt not due, and prescripe the mode of suing out such un attachment. As originally enacted, the statute provides as follows: ' "Sec. 438. The attachmentauthorizpd by the last section [for debt not due] may be granted by the court in which the action is brought. or b;r the jUdge thereof. or ahy circuit jUdge in vacation, where the complaint. verified by the oath of the plaintiff. shows any of the grounds for attachment enumEl,"ated in that section, and the nature and amount of plaintiff's claim. and when the same Will become due. Sec. 439. The order of the court or judge granting the attachment shall specify the amount for which it isaIlowed. not t'xceed-' ing a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. Sec. 440. The order ofattachment, as granted by the court or judbe, shall not be issued oy the clerk until there has been executed in his office such bond on the part of the plaintiff as is directed in cases of attachment. and the provisions of this chapter, so far as they lire applicable. shall apply to attachments for debts not due." Sections 438-440, Gantt's Dig. St. Ark. By an act approved March 18,1881, p. 99, it was enacted as follows: "Section 1. That section 438 of Gantt's Digest be amended so as to read as follows: The attachment authurized by the last section may be granted by the court in Which the action is brought. or the clerk or judge thereof. or anycircuit jUdge in vacation. where the complaint, verified by the oath of the plaintiff, his agent ot atturney, shows any of the grounds of attachment enumerated in that section, and the nature and amount of plaintiff's claim, and when the same will become due." The two succeeding sections were not amended, butin the compilation of the statutes of the state made in 1884, and known as "Mansfield's Digest," the words I'or clerk"appear-whether from clerical misprision or otherwise is not stated.o.;..after the word "court" in those sections. Mansr. Dig. St. Ark. §§ 362-364. In the circuit court the
I'EDll1RAL REPQR'l'ER,
vol. 51.
moved to quash the attachment upon three grounds: (1) That the order of attachQlentwas issued before any order had been made by the clerk or any other officer authorized by law to make it, specifying the amount for which the attachment was allowed, as required in the case of an attachment fora debt not due; (2) that the clerk had no authority to make an order for an attachment for a debt not due, because it was a judicial, and not a ministerial, act; (3) that the order of attachment was signed and sealed. bY' .the clerk, and delivered to the sheriff, at the office of an attorney interested adversely to the defendant, and half a mile distant from the office of the clerk in the court house, and before the complaint, affidavit, and bond were filed in the clerk's office. The court sustained first ground, and overruled the second. Issue was taken on the third, and the court n;lade .the' following special findings of facts and declarations of law: "That on the evening of the 16th day of August, 1890, at about 7:30 P. M.; the deputy clerk, whose name is signed to the process herein, was called upon at his residence in' the of Helena by the cashier of the People's Savlogs Bank & Company. and requested to go to the courthouse and get the official seal of the circuit court, and come with the same to the law office' of, J ohnJ. and E.C. Hornor, where parties were preparing papers in certain actions which it was desired to bring i.n the court (If which he was deputy clerk; .thllt the said dElputy accordingly went to the courthouse, and got tJ)e seal .1).1s said office. and took l;he same with him to the office of said Hornors, which is about one half mile distant from the clerk's office. and in the city of 'Helena; that upon arriving at the said office he found present the attorneys for the plaintiff, and R. C. Burke, a deputy sheriff of Phillips county; that before ttje arrival of the said deputy clerk, or shortly thereafter. the attprneys for the .plaintiff prepared, on blanks procured from some one not know n tQ. the deputy the .writs of sum,mons and attachment now on file in this action; tAl;l.t the original complaint,allid,av.it, and bond found in the record of tllis cause were presented to tile said ·<ieputy clerk in the office of the said HQrnors., and he then and there mark now appearing on said c\>mplaiQt, affidavit, and :bond, and approved the said bond. and immediately t1;lereafter. at said office, signed said writs of summons and attachments, and q.ttested. the same, with. the official seal·· and handed the same to R. C. Burke. present in said office as deputy sheriff. for serviceaceording to the command thereof; that Mr. Burke immedilLtely indorsed on· said writ of attachment the time at which the same came to his hands, and then proceeded to execute the same; that ehortly thereafter the, deputy clerk left the office of said Hornors, amI within fifteen minutes after leaVing deposited said complaint, affidavit, and bond. together with his official seal, in the office of the clerk of t1;le circuit court of Phillips county coqrthouse; that Phillips county has a (lourthouse at Helena. Ark., and in said courthouse there is set apart to and occnpjed by the clerk of the circuit cOllrt an office, in which he keeps the records pertaining to his official station, and that he had such office at the time of the doi.ng ,of the things hereinabove, stated and .found; that the hour at the C!1sbier called upon the deputy was later than the hours for keeping open the clerk's office; that the clerk and his deputy had left the offiCe, and the deputy was found at his residence; that the local manager and agei'll; of ·the defendant corporation was:present in the said office of the said Hornors when the deputy sheriff received the writs, alldthe said deputy sheriff at once madill service of eachof.sai«.lwrits by delivering a copy thereof to sl;\id agent, iu.,&aid office. and before the said deputy clerk had left th6 said 9,ffice with :papers in this case al)ld his, seal."
PEOPLE'S SAV. BANK & TRUST
00. tI.
BATCHELDER EGG CASE
CO.
133
Upon the foregoing facts the court declared the law to be lltLat the writ or order of attachment herein is void for having been issued contrary to law, in that it was so issued by the clerk before there had been filed in his office the plaintiff's complaint, affidavit, and bond; to which dec-' laration of law the plaintiff at the time excepted." The plaintifi·duly excepted to the rulings of the court, and, final judgment having been rendered against it on the attachment, it sued out this writ of error. . Greenfield Quarles, John I. Moore, John J. Hornor, E. O. HornO't, M. L. Stephenson, and J. Trieber, for plaintiff in error. . James P. Olarke, for defendant in error.
Before CAWWELL and SANBORN, Circuit .Judges, and SHIRAS, DistriCt CALDWELL, Circuit Judge, (after stating the facts.) By the provisions of section 438. Gantt's Dig. St. Ark.. an attachment for a debt not due had to be granted by the court in which the action was brought, or by the judge thereof, or some circuit judge; and by the provisions of section 439 the order of the court or judge granting the attachment had to specify the amount for which it was allowed. Subsequently section 438 was amended (act approved March 18, 1881, p. 99) by conferring on the clerk of the court the same power and authority to grant an attachment for a debt not due that was conferred on the court or judge by the original act, and the attachment in this case was allowed and issued by the clerk under the authority of section 438, as amended by the act of 1881, and which is now section 362 of Mansfield's Digest Of the Statutes of Arkansas. One ground relied on to support the judgment of the court below, quashing the attachment, is that the clerk did not, before issuing the order of attachment to the sheriff, make sign a separate order directed to himself, specifying the amount for which he had allowed the attachment. The law does not require thIS to be done when the clerk allows and issues the attachment himself; If the order for the attachment is granted by the court or judge; the statute requires that it shall specify the amount for which it is allowed. This requirement is necessary in order that the clerk may know what sum to insert in the attachment which he issues to the sheriff, but when the attachment is allowed by the clerk himself, and the order of attachment is duly issued by the clerk to the sheriff, he is not required to issue another order, directed to himself, specifying the amonnt for which he has allowed the attachment. It is true, however, that in Mansfield's Digest of the laws of that state the word "clerk" is inserted in connection with that of" judge," in sections 363 and 364, in a way that seemingly requires him to do this very thing; and the contention of the defend;. ant in error is that the clerk, like the court or judge, must, when he allows an attachment for a debt not due, make an order specifying the amount for which it is allowed, in addition to the order of attachment which he issues to the sheriff. How the word "clerk" came to be in;' serted in the two sections last named does not appear. It is undoubtedly there without legislati ve sanction, unless a proper construction of the
clear that that act C4n have, no ,on the clerk, equally with ,the court ,or to issue for a debtnotdue. It does no . .lJl0J'e. It does not requiretbe:clerk, when he allows and issues an atcertify to himself the amount for which be has allowed it. That qt1a vain andunneqessary proceeding. The act, as passed by such duty on the and we may add that under the decisions of the supreme court of Arkansas relating to the validity of attachment procflcdings, Hit had contained such a superfluous requirement, the failure to comply with it would not have affected the validity ,otherwise duly issued. It is the settled doctrine of the supreme court of Arkansas that the proceeding byattachment, like any other civil action, may be amended in matter of substance as well form at every stage of the case, and that every error or defect in the whIch does not injuriously affect the substantial rights of the defenl;laot in.theattachment will be disregarded. Roger8 v. ('ooper, 33 Ark. 406; Weilv, Kitlay, 40 4l'k. 528; Sannqner v. Jacob8on, 47 Ark. 31, 14 S. W. Rep. 458; Kahn,v. Kuhn, 44 Ark. 404; Fortenheim v. ;Olaflin, 47 Ark. 49, 14 S. W. R,ep·.462. , I Cases!p!lY be found in other jurisdictions holding that ao attachment harsh and opprElSsive remedy, bordering on a criminal prosecution,and applying to H such strict and, technical rules of prneItice and decision as to practically destroy the remedy. But the doctrine of thelle pases meets with no favor in the supreme court of Arkansas. In that court a suit by attachment is regarded like any other civil suit authorized by law, and the same liberal and enlightened rules of praeticethat obtainin other cases are applied to attachment suits. Formal and technical defects. are disregarded, and the case tried on its merits. The decisions of the supreme court of a state, construing and applying its attachment Jaws, are rules of decision in ,this court, in like cases, , coming from that It appears from the special findings of facts that, after the usual office hours, the clerk, taking with him the seal of the court, proceeded a law office at the seat of justice of the couuty, SOme half a mile from the courthollse,where he kept his office, and there received the complaint, affidavit, and bond, and marked the same "Filed." and approved the bond, and then filled up and siKned and sealed the order of attachment, and deHvered the same to the sheriff. It will be observed that every paper necessary to valid attachment wa,s duly executed and placed in ,he hands of the clerk, and by him marked" Filed" before the order of attachment was issued, and that the order itself was in .proper form, and duly signed and sealed. As soon as the clerk could walk from the law office where this was done to his own office, a distance of haIfa mile, the ,complaint and other papers were placed in the proper pigeouhqle in 4is, office. :Upon these facts it is urged that the ,order ofatml;lbmen,t j and this, contention is rested on the following sections of Digest of the Statutes of Arkansas:
pq.t3it
PEOPLE'S SAV. BANK & TRUST CO. V. BAix'CHELDER EGG CASE CO.
135
"Sec; 547. He [the clerk]shall keep his office at the seat otjustice of the county of which he is clerk, and therei keep tbe recordS, papersi seals, and property belonging to !lis ,sMB there tratisllct his business." "Sec. 4967. A civil action is commeu\led by tiling in the office of the clerk of the proper court a complaint, and cail'sini; a summollsto be issued tbereon." "Sec. 5308. No summons or order for provisional remedy shall be issued by the clerkin any action before tbe 'plaintiff's complaint or petition therein is filed in bis office." It is un.doubtedly the duty of the clerk under section 547 to keepa.n office at the seat of justice, and transact his' business there. But nei': ther this section, nor any other provision of the statute; declares that every official act of the clerk not perfbrmed within the four walls of his office shall. be void. To j)lace' such a construction upon, this would be productive of t,he most injurious' consequences to the public. It is comlllon practice for the clerk to perform official acts and llffixhis seal to documents outside of his office. He frequently takes 'acknowl· edgll1ents of conveyances and powers of attorney, and signs and seals the same, outside of his office. Are all such acknowledgments void? The clerk should be in his' office during the business hours ready to transact the public business, but it is perfectly competent for him to perform such official Bctsas were performed in this case elsewhere than in his office. County bonds of a county in Iowa, which were signed by the county judge and the seal of the county affixed thereto by him in New York city, were held to be valid securities. Lynde v. Winnebago Co., 16 Wall. 6. In the case last cited the officer was beyond his territorial jurisdiction when he signed the bonds and affixed the seal of the county 'thereto, but in the case at bar the acts of the clerk were performed at the seat of justice of his county. If a clerk neglects to keep an office at the seat of justice of his county, or having an office there he transacts business wherever in the seat of justice of the county he finds it convenient to do so, he may be answerable to the public for not keeping a: regular office and transacting his business there, but his official acts are not void because he performs them in some other office at the county seat. In Arkansas the derk is ex officio recorder. If, at the close of business hours, he should take the record of deeds from his office to his residence, and there record deeds, would the record of snch instruments be a nullity, or would the records of court entered under similar conditions be void? He is undoubtedly under obligations to the publicto keep an office at the county seat, and there transact his business; but a breach of this duty does not affect the validity of the official acts he performs for the citizen. It is next contended that the attachment was void because the order of attachment was placed in the hands of the marshal. by the clerk before the complaint, affidavit, ahd bond had been "f1led in his office," as required by section 5308. There are several answers this contention. Under this section the issuing of the summons or order in a case must not precede the filing of the complaint or petition upon which it is founded. The requisite complaint or petition must be filed with the
vol 51 clerk ,before that officer can Jssue process. This is a reasonable and propeuequirement. The essential thing to be done before process can ri@tfully issue is to lodge with the clerk 8 proper complaint. It is this,andnot the place where this is done, or the pa.rticular room in which the complaint is deposited, that confers on the clerk authority to ,issue the process.. When, a plaintiff to the clerk a complaint or petition which entitles him to a summons or order for a provisional remedy, and the clerk puts his file mark upon it, and retains the custody of it, and issues the proper process upon it, such pro(leSS is not void, as ,against defendant, because at the time of its iseue the clerk had not placed the complaint or petition in his office. It often occurs that COmplaints or petitions for provisional remedies are delivered to the clerk in the court room, and process at once issued upon them. Are the proceedings in such cases void because the complaints were not carried by the. clerk and placed in his office before he issued process upon them? It not unfrequenUy occurs that the court room and the clerk's office are in different· buildings more or less distant from each pther. Must the clerk in such cases, before issuing process upon petitions filed with him in the court house. leave his desk in the court room, imd go to his office for the sole purpose of placing therein the petitions? Such a literal construction of the statute would be too narrow and technical for the practical and business methods that should obtain in the administration of the law. It would serve no useful purpose, but would frequently. produce the most mischievous consequences. A statute of Wisconsin provided that "an attempt to commence an action shall be deemed equivalent to the commencement thereof, where the SUmmons is delivered with the intent that it shall be actually served to the sheriff or other proper officer of the county in: which the defendants, or one of them, usually or last resided." The question arose under this statute whether it was essential to the commencement of an action that there should be an actual manual delivery of the summons "to the sheriff or other proper officer," and the court said: "In order to come within the second sentence of that section requiring the be delivered with' the intent tllat it shall be actually served to ,Summons the sheriff or other proper officer,' it does not appear to us to be necessary that there should be a manual delivery of the summons to the officer in person. It would be sufficient, for instance, if the attorney left it on the marshal's desk, or other place in the marshal's office, so that the marshal would understand that it was left with him for service. It would be equally suffi. clerk acting by his direction, placed the summons cient if the attorney, or in a box in the clerk's office designated by the marshal with the clp.rk's assent as a place where process to be served by him should be deposited, and from which he usually took them daily."
to
And it was held that depositing a summons in a box in the clerk's of. fice, so designated, was tantamount to delhrering the same to the sheriff or other proper officer'jp person. v. Eldred, 130 U. S. 693, 9 Sup· .Ct. Rep. 690. The defendant was not prejudiced in. any manner by the fact that the complaint, affidavit, and bond were not within the four walls of the
BANK
OF
HELENA, ARK.,
V.
BATCHELDER EGG
CASE CO.
137
clerk's office at the instant the order of attachment was issued and placed in the sheriff's hands. Section 5083 of Mansfield's Digest of the Statutes of Arkansas provides that" the court must in every stage of the action disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." Under this section, the irregularity, if any, in the clerk issuing the order of attachment after the complaint, bond, and affidavit were filed with him, but before he had placed them in his office, must be disregarded. There is another view proper to be considered, which is equally fatal to the defendant's con· tention. Leth be conceded that the order of attachment was placed in the hands of the sheriff prematurely on account of the complaint, davit, and bond not then being in the clerk's office, still these papers had all been duly executed and filed with the clerk, and were actually placed in the clerk's office a few minutes afterwards, and from that time tainly the order of attachment, and the service thereof, and the levy made thereunder, became effectul;LI and billding for all purposes against the defendant. and all others who acquired no rights' before the papers were thus filed in the clerk's office. SmaU v. McOhesney, 3 Cow. 19; Olute v. Olute. 3 Denio, 263;Olv,te v. Clute, 4 Denio, 241. The judgment of the court below is reversed, and the cause remanded, with instructions to grant a new trial.
HELENA. ARK.·
'0.
EGG
CASE
UO.
(Circuit Court of .AppeaI8, Eighth Circuit. July 5, 1892.) No. 74.
In Error to the Circuit Court of the United States for the Eaetern District , of Arkansas. Reversed. (h'eenjield Quarles, John I. Moore, John J. Hornor. E. C. Hornor, M. L. Stephenson, and J. Trieber. for plaintiff in error. James P. Clarke. for defendant in error.
Before CALDWELL and SANBORN. Circuit Judges, and SHlRAS, District Judge. CALDWELL. Circuit Judge. The record in this case is identical, save in the name of the plaintiff. with that in the case of People's lSav. Bank & Trust Co. v.Batchelder Egg Case Co., 51 Fed. Rep.130, (No. 76,) and was sub"llitted with that case upon a stipulation that it should abide the result in that case. The judgment of the court below is therefore reversed, and the cause remanded for a new trial.