People's Sav. Bank & Trust Co. v. Batchelder Egg Case Co., 51 F. 130

Caldwell, Circuit Judge, (after staling the fads.) 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 ivas conferred oil 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 and sign a separate order directed to himself, specifying the amount for which ho 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 amount 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 defendant 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. Uow the word “clerk” came to be inserted in the two sections last named does not appear.

It is undoubtedly there without legislative sanction, unless a proper construction of the act of 1881 puts it there, and it seems clear that that act can have no such effect. That act confers on the clerk, equally with the court or judge, authority to issue an attachment for a debt not due. It does no more. It does not require the clerk, when he allows and issues an attachment, to certify to himself the amount for which he has allowed it. That would be a vain and unnecessary proceeding.

The act, as passed by the legislature, imposed no such duty on the clerk, and we may add that under the decisions of the supreme court of Arkansas relating to the validity of attachment proceedings, if it had contained such a superfluous requirement, the failure to comply with it would not have affected the validity of an attachment otherwise duly issued.

It is the settled doctrine of the supreme court of Arkansas that the proceeding by attachment, like any other civil action, may be amended in matter of substance as well as form at every stage of the case, and that every error or defect in the proceedings which does not injuriously affect the substantial rights \ of the defendant in the attachment will be disregarded. Rogers v. Cooper, 33 Ark. 406; Weil v. Kitlay, 40 Ark. 528; Sannoner v. Jacobson, 47 Ark. 31, 14 S. W. Rep. 458; Kahn v. Kuhn, 44 Ark. 404; Fortenheim v. Claflin, 47 Ark. 49, 14 S. W.

Rep. 462. ; Cases may be found in other jurisdictions holding that an attachment proceeding is a harsh and oppressive remedy, bordering on a criminal prosecution, and applying to it stích strict and technical rules of prac- , tice and decision as to practically destroy the remedy. But the doctrine of these gases 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 iiberal and enlightened rules of practice that obtain in 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 laws, are rules of decision in this court, in like cases, 'coming from that state.

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 to a law office at the seat of justice of the county, some half a mile from the courthouse, where he kept his office, and there received the complaint, affidavit, and bond', and marked the same “Filed,” and ajjproved the bond, and then filled up and signed and sealed the order of attachment, and delivered the same to the sheriff.

It will he observed that every paper necessary to a-valid attachment was duly executed and placed in the 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 half a mile, the complaint and other papers were placed in the ' proper pigeonhole in his office.

Upon these facts it is urged that the order of attachment is void; and this contention is rested on the following sections of Mansfield’s Digest of the Statutes of Arkansas: “Sec. 547. He [tlie clerk] shall keep his office at the seat of justice of the county of which he is clerk, and there keep the records, papers, seals, and property belonging to his office, and shall there transact his business.” “Sec. 4967. A civil action is commenced by filing in the office of the clerk of tlie proper court a complaint, and causing a summons to be issued thereon.” “Sec. 5308.

Ho summons or order for provisional remedy shall be issued by the clerk in any action before the plaintiff's complaint or petition therein is filed in his office.” It is undoubtedly the duty of the clerk under

section 547 to keep an office at the seat of justice, and transact his business there. But neither this section, nor any other provision of the statute, declares that every official act of the clerk not performed within the lour walls of his office shall be void. To place such a construction upon this statute would bo productive of the most injurious consequences to the public. It is common practice for the clerk to perform official acts and affix his seal to documents outside of his office.

He frequently takes acknowledgments 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 acts as were performed in this case elsewhere than in his office. County bonds of a county in Iuwa, 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 Go., 16 Wall. 6.

In the case last cited the officer was beyond his territorial jurisdiction when ho signed the bonds and affixed the seal of the county, thereto, hut 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 scat of justice of his county, or having an office there he transacts business wherever in the scat 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 comity seat. In Arkansas the clerk 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 such instruments he a nullity, or would the records of court entered under similar conditions be void? He is undoubtedly under obligations to the public to 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 ho 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 tlie clerk before the complaint, affidavit, and bond had been “filed in his office,” as required by

section 5308. There are' several answers to 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 bo filed with the clerk before that officer can issue process. This is a reasonable and proper requirement. The essential-thing to be done before process'can rightfully issue is to lodge with the clerk a proper complaint. It is this, and not the place where this is done, or the particular, room in which the complaint is deposited, that confers on the clerk authority to issue the process.

When, therefore, a plaintiff delivers 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 process is not void, as against the defendant, because at the time of its issue 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 eases void because the complaints were not carried by the clerk and placed in his office before he issued process upon them? It not unfrequently occurs that the court room and the clerk’s office are in different buildings more or less distant from each other. Must the clerk in such cases, before issuing process upon petitions filed with him in the courthouse, leave his desk in the court room, and 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 la.w. 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 summons to be delivered With • the intent that it shall be actually served to 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 sufficient if the attorney, or the clerk acting by his direction, placed the summons in a box in the clerk’s office designated by the marshal with the clerk’s assent as a place where process to be served by him should be deposited, and from which he usually took them daily.” And it was held that depositing a summons in a box in the clerk’s office, so designated, was tantamount to delivering the same to the sheriff or other proper officer in person. Bank 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 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 contention.

Lot it he conceded that the order of attachment was placed in the hands of the sheriff prematurely on account of the complaint, affidavit, 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 certainly the order of attachment, and the service thereof, and the levy made thereunder, became effectual and binding for all purposes against the defendant, and all others who acquired no rights before the papers were thus filed in the clerk’s office. Small v.

McChesney, 3 Cow. 19; Clute v. Clute, 3 Denio, 263; Clute v. Clute, 4 Denio, 241. The judgment of the court below is reversed, and the cauée remanded, with instructions to grant a new trial.