CHURCHILL a. MARSH

CHURCHILL a. MARSH. New York Common Pleas; General Term, September, 1855. MaeiNE Court. — Jurisdiction to Grant Attachment. — Seal Requisite to Process. It seems, that the acts of 1852 and 1853, extending the jurisdiction of the Marine Court so as to permit a recovery to the amount of $500, also extended the power of that Court to issue an attachment against the property of a non-resident, when the amount claimed does not exceed that sum. An attachment against property, issued out of the Marine Court, must be issued under the seal of the Court, and, if not so scaled, and the defendants do not appear in the action, (although they come into Court to object to the proceedings,) the Court do not in virtue of the attachment, or the summons founded thereon and not personally served, acquire any jurisdiction of the defendant, and their judgment, founded on such unsealed attachment, by default, must be reversed. Appeal from a j udgment of the Marine Court. This was an action brought in the New York Marine Court, by William Churchill, Jr., against Joseph B. Marsh and Cornelius G. Yan Deusen, for the recovery of $229 91, due on a promissory note made by defendants to the plaintiff. The action was commenced by an application to one of the justices of the court, February 9, 1855, for an attachment against the property of the defendants as non-resident debtors, under the act to abolish imprisonment for debt and to punish fraudulent debtors, (laws of 1831, ch. 300). A warrant of attachment, returnable February 12, was accordingly issued ; which, however, did not appear by the papers on the appeal, to have been issued under the seal of the court. Upon the warrant of attachment the following return was made. “ By virtue of the within attachment, I did, on the 9th day of February, 1855, attach and take the property of the defendants which I found at No. 82 Broadway, and at the same time I served a true copy of saicj original and also a copy of the inventory which is hereunto annexed, on the person in whose possession I found the property of the defendants.” (Here followed the inventory). C. F. Watts, Constable. On the return day the defendants appeared by their counsel, Mr. Warren G. Brown, for the special purpose of objecting to the jurisdiction. The principal objections taken were in substance as follows: 1. That the court had no jurisdiction to grant an attachment for more than $100. 2. That the attachment was void for want of a seal. 3. That the return did not state, whether the attachment was or was not personally served. The court overruled these objections. Subsequently by order of the presiding justice, the constable was allowed to amend his return, by the addition of the following words. “ And that I did not serve the same on either of the defendants.” The defendants failing to appear generally in the cause, the justice ordered a short summons to be issued, returnable the 16th of February. Beturn thereof having been made that after diligent search the defendants could not be found, and that copy service only had been made, the justice proceeded on the return day of the summons to take proof of the plaintiffs’ case. Mr. Brown was present in court on the return of the summons, and during the inquest, but did not appear for the defendants at that stage of the case. Upon the evidence offered by plaintiff, the justice rendered judgment in his favor for the amount claimed, with interest and costs. The defendants’ counsel then formally appeared for them in the cause, and moved for a stay of execution to enable him to bring an appeal upon the objections before urged. This was the present appeal. Tyler d? Brown, for appellants. I. The Marine Court has no jurisdiction to grant an attachment for over $100. The Code (§§ 53, 65), gives the court jurisdiction over various causes of action both as to debt and damages. But subdivision 4 of section 53, gives jurisdiction in “ an action commenced by attachment of property as now provided by statute,” to $100 debt or damages; making a plain distinction between the recovery of a debt or damages, and the special remedy by “ attachment of property.” The same distinction is taken in the Revised Statutes, (2 Rev. Stats., 3 ed. 324). By the acts extending the jurisdiction of the Marine Court, {Laws of 1852, 647; 1853, 1165), the jurisdiction is extended to the recovery of $500; but these acts do not extend the preliminary and special remedy of attachment, which is no part of the “recovery;” and the attachment of property at the beginning of a suit is an extraordinary remedy not to be extended by implication. Moreover, the attachment purports upon its face, to be issued “ according to the provisions of the Act to abolish imprisonment for debt, and to punish fraudulent debtors.” {Laws of 1831 ch. 300). Now, by the provisions of that Act, the authority to urant attachments is expressly limited to claims of $100 or less, (§§ 34, 47). II. There was no seal to the attachment, and this is a fatal objection. The Act to reduce several laws relating to the city of New York into one Act, (2 Rev, Laws of 1813, 370, § 111), provides, that all process to be issued out of the Marine Court, “ shall be sealed with the seal of the said courtand the Act of 1852, (§10), provides for such seal. And if a seal is necessary, it must affirmatively appear that there was one. This does not appear, but the contrary. HI. The original return of the constable did not confer jurisdiction, because it did not state specifically as required by section 36 of the non-imprisonment act, whether a copy was or was not personally served on the defendant. If any amendment to the return was made, it was made after the objection of defendant’s counsel was overruled, and the counsel had left the court. When a party appears specially to raise an objection, and the objection is overruled, and he then leaves, as in this case, the court has no right subsequently to deprive him of the benefit of the objection by an amendment. Barnard & Parsons, for respondents. I. The first two objections raised against the validity of the warrant cannot be sustained; they would apply as well to all original process for the commencement of actions in the Marine Court, as to attachments. II. The purpose of the provision requiring that the return of an attachment shall state whether it was personally served, is only for the purpose of enabling the court to know whether a short summons is necessary to give jurisdiction of the person of defendants, which jurisdiction they would have in case of personal service of the attachment. In this case a short summons was issued, and served according to statute; hence the proceedings would have been entirely regular, had no amendment been made. The original return, coupled with the subsequent proceedings, was sufficient. [MAJORITY — Woodeuff, J.] By the Couet. Woodeuff, J. I am much inclined to the opinion, that section 9, of the Act of April 17, 1852, (laws of 1852, ch. 389), and sectidn 2 of the Act of July 21, 1853, (laws of 1853, ch. 617), by which it is provided, that in all cases where the jurisdiction of the Marine Court is now limited, “so that there can be no recovery therein for a larger amount than $100,” {Act of 1852), “ the jurisdiction is hereby extended, so that in such cases the recovery of either party may hereafter be to the amount of $500,” operated to enlarge the jurisdiction of that court in issuing attachments against non-resident debtors, as well as other process. Before the Code was enacted, that court had, under the provisions of section 33 of the non-imprisonment Act, {Laws of 1831, 396; ch. 300, as amended by ch. 377 of Laws of 1840), power to issue an attachment against a non-resident defendant, without any limitation in terms as to the amount of the claim. The limitation consisted in the want of jurisdiction where the sum due or thing demanded exceeded $100. Section 53 of the Code confers civil jurisdiction on that court {see also § 65), in various actions specified, and no others, viz.: — An action arising on contract for the recovery of money only, “ if the sum claimed do not exceed one hundred dollars.” An action for damages, &c., &c. * * “ if the damages claimed do not exceed one hundred dollars.” An action for a penalty “ not exceeding one hundred dollars.” An action commenced by attachment of property as now provided by statute,” if the debt or damages claimed do not exceed $100and so on in various other actions, if the sum, debt, amount, or damages claimed, “ does not exceed $100.” It is now argued that the acts of 1852 and 1853, which remove the limitation of the amount which may be recovered to $100, and extend the jurisdiction, “ so that there may be a recovery to the amount of $500,” do not extend the power to issue an attachment to cases where the amount claimed exceeds $100. If this be so, then it does not give jurisdiction of an action arising on contract, where the amount claimed exceeds $100. Nor of any of the actions mentioned in section 53, in which the jurisdiction is limited by the amount of debt or damages claimed, for this limitation is in the same words applied to each action of which jurisdiction is conferred. The suggestion amounts to this, “Although the jurisdiction is extended so that there may be a recovery to the amount of $500, yet there is no jurisdiction if the amount claimed exceeds $100.” I need hardly say that this would be an insensible and contradictory construction which we should not adopt unless compelled to do so. The better reading of the laws of 1852 and 1853 is, that all restrictions now existing are removed so that there may be a recovery to the amount of $500 in all cases of which heretofore the Court had jurisdiction to the amount of $100. And this being the true meaning of these acts, it follows that so far as the limitations in section 53, to actions where the amount claimed did not exceed $100, impeded or prevented a recovery of a larger sum, they are abrogated. And the result is, that the jurisdiction embracing a right of recovery to the extent of $500, carries with it a right in the plaintiff to claim a recovery to that extent. And the power of the Court to issue an attachment against a non-resident under section 33 of the act of 1830, having no limitation in terms, and none by implication, except the limit to the Court’s jurisdiction, the attachment in this case was legally issued. As to the alleged defect in the constable’s return, I think it is groundless. He did return upon whom he did serve the attachment and inventory, so that it appeared by the return that he did not serve it on the defendants. This was sufficient without the amendment, and if an amendment was necessary, I think the Court might permit it to be made. The remaining question is, whether the Court acquired any jurisdiction by the issuing and service of an attachment, not having a seal, or whether it is now necessary that process out of the Marine Court shall be sealed with the seal of that Court. By section 107 of the Act of 1813, (2 Rev. Laws, 382,) it is provided, that the Marine Court “ shall have a seal to be devised by the justices thereof. By Section 111 of the same act, it is enacted, among various other tilings, that “ all process to be issued out of the said Court shall be * * * sealed with the seal of the said Court.” In 1849, it was enacted that the above section, 107, of the Act of 1813, be, and the same was thereby repealed, (Laws of 1849, 200, § 7.) Although this last act did not in terms repeal section 111 of the Act of 1813, it did, by section 16, provide that all acts and parts of acts, inconsistent with the act of 1849, were repealed. The result was, that so much of section 111, of the Act of 1813, as required that process should be sealed, was repealed, because, and only because, the Court having thereafter no seal, compliance with that requirement was impossible. But by Act of 1852, (Laws of 1852, 619, § 10,) the Common Council of New York are required to provide a seal, ⅜ * * « which seal shall be the seal of the said Court.” This provision being affirmative in its character, not only repealed the repealing Act of 1819, so far as that Act had deprived the Marine Court of a seal, but to that extent revived section 107 of the Act of 1813. It is no longer therefore impossible to comply with the requirements of section 111, and that section being before only repealed by necessary construction, is in my opinion revived by the restoration of a seal to the Court. The case might perhaps have been otherwise, if section 111 had been in terms repealed by the legislature, but such repeal was only by inference, from the fact that the seal was taken away, and in its restoration the reason fails, and the provision revives. An affirmative act of the same import as a repealed statute is, per se, a repeal of the repealing act (1 Bl. Com., 89, 1 Bac. Abr., 617-8,) that is, if a statute which has been repealed be afterwards revived, the repealing statute becomes of no force. And by a repeal of a repealing statute, the original statute is, to the extent of such repeal, revived. (Wheeler v. Roberts, 7 Cow., 536; 1 Bl. Com., 90; 1 Bac. Abr., 638, Tit. Stat. D. 2 Inst., 686; 1 Coke., 7.) And this is, I apprehend, clearly true, when the repealing statute only operated constructively, as the Act of 1819 did upon section 111, above mentioned. I think, therefore, the attachment in this case should have been issued under the seal of the Court. This is a substantive and not merely technical objection. It impeaches the very act by which jurisdiction is to be acquired over the defendants and rests on the non-compliance with a statute requisite. Had the defendants appeared and pleaded to the merits, the objection would have been waived ; but having come in only to object to the jurisdiction upon this and other grounds alleged as errors or irregularities in the process, they waived nothing. It is not enough to say .that the process was not void, but only voidable, as was said of a venire and of an execution wanting a seal, (Jackson v. Brown, 1 Cow., 550. The People v. Dunning, 1. Wend., 16.) There the court had acquired jurisdiction of the parties and of the subject of the action, and such defects were in those cases deemed by the Supreme Court amendable. Here a Court of limited jurisdiction must pursue the very means of acquiring jurisdiction prescribed by the statute. And besides, the objection was taken, and well taken, and the court could not utterly disregard it. I think we are constrained to reverse the judgment. Daly, J. concurred. In an action brought in the Marine Court subsequent to this decision, by Micah J. Lyman against Josiah Perham and others, as makers and endorsers of a promissory note, Mr. Lyman Abbott appeared for the defendant, Perham, for the purpose of objecting to the validity of the summons served upon him,,on the ground that it was not issued under seal. He contended that the decision of the Common Pleas in Churchill v. Marsh, above, was applicable to summons equally with attachment. The objection was sustained. We understand that since these two decisions all process of the Marine Court is uniformly issued under seal. [DISSENT — INGRAham, F. J.] INGRAham, F. J. dissented. I concur in the opinion of Judge Woodruff, except as to the necessity of a seal to the attachment when issued by the Marine Court. Section 107 of the Act of 1813, confers upon the court the right to have a seal for the court. Section 7 of the Act of 1849, relating to the Marine Court {Laws of 1849, 199,) repeals section 107 above referred to, and thereafter the court had no seal; and the same section conferred upon the justices chosen by that act, all the powers theretofore possessed by the justices of that court. Section 16, of the same act, repealed all provisions of laws inconsistent with the provisions of the said act. So much therefore, of the Act of 1813, as required attachment from the Marine Court to be under seal, was repealed by that act as being inconsistent with the provisions taking away the seal of the court. The Act of 1852, (Laws of 1852, 647.) which restored to the court a seal, did not revive the old provision of the Act of 1813, which required attachments to be under seal. That provision having been repealed by the Act of 1847, could not be revived except by legislative enactment, or the repeal of the Act of 1847; — neither of which has taken place. I think the judgment should be affirmed. Judgment reversed.