Show OPINION BY JUDGE KINNEY IN im DISTRICT coi COURT e t T THIRD JUDICIAL diso dia march term wim aj AD 1862 wm lym F dyer co commenced suit sult by attachment tach ment against gilbert gerrish as non tre Iii biden aiden 9 and recovered judgment judgment in the pro pio i bate court of great salt sait like county cou Con rity I 1 defendants appealed to the district court and as the te ten n days dayis required by statute between tile the day oil on which the jud judgment ment was rendered arid th thy t day 0 of the nitting sitting if f t vis is e ourt had bad not intervened the appeal was docketed for tor the next regular term of the district court on the ad day of april application vas vas ras milide made for a writ of certiorari the defendants alleging that the court below erred in aver r ver ruling their motion to dismiss the writ of attachment I 1 certiorari was issued and in purs pursuance liance tiance thereof the court below med filed in thiis court a certified i tidied transcript of tiie the proceedings in said cadi casl cage it is now contended by gilbert gerish ahat ihal the court erred first in deciding that they were non residents second iii in giving force and effect to the attachment law passed bythe leb leg legislature lature of last fast winter and third juat jual neither that law nor the attachment law I 1 of ma aia ch ad 1852 were in force at the time lime tuese these proceedings proceeding L s were instituted the act of fet liba jet winter not hot having baving yet taken effect as is bai wal bailand dand and the lacot law of 1852 having been repealed by the act regulating the mode of procedure I 1 in civil cases cabes in the courts of the territory of utah approved dec 30 IS 18 2 we wil briefly examine these points made by counsel for gilbert gillert Gerri bernsh sll sil in the order her hero stated first the question tion whether the defendants below were non residents cannot be inquired into by this proceeding that was a question j of t vict faa for tor or the court coutt to det determine ermine ermint froin the I 1 i testimony adduced having been decided the law presumes that it was decided corre fly and upon sufficient evidene evident to authorize the tie tle cison that gilbert gerrish Gerri sil sli were non residents the writ of certiorari only brina brin a up lip the record and such matters as are of r record e can only be examined exam ned testimony apon a given point or isse does not belong to 0 o the tr records ecord and can only be made such by bill of except ons ono properly certified to and signed by the tte tt judge ejude and even then before a cobit of 0 error would be justified in reversing the judgment biow bolow blow founded i pon tipon facts acts it should appear affirmatively of record that the testimony set bet out in the bill of exceptions was all the evid tice wee adduced no bill of exceptions was isas is ivas as taken in this case and as to the question justion hustion of jact fact found ol 01 ind by the court to wit that gilbert ferrisi ut arrisi non residents we cannot now t inquire this is a proe proceeding epding to test questions and not matters of fact second the attachment law of lat last winter under which it w uld appear from the record the writ of attachment was sued out was not in force at the time courts are t d ato to take judicial notice of the enactment of all gene genel dl laws lawa and of the time when they take effect 0 byan liyan act approved january 19 1854 1834 it is provided that each act and resolution is in force forc lom flom the date of its publication in any ii blie manner unless a certain time is apeci fi gil 11 1 no time is 13 fixed for the attachment law of last winter to take effect and by virtue of the st stature statute above quoted it could not becom onra oMra operative tive until it was published in a public mamae As such pub leation was not ilot made antecedent to the issuance ot of the attach attachment against gilbert gerrish it follows as a tic nce essary sequence that the attachment pro ce edings eding dings dingi 3 cannot be supported by the law of list lyst winter we sai bah 1 it ic appeared that the writ wa issued in in pursuance of this law we ledge so from the fact that the attachment law of march 3 1852 does not re the plaintiff in attachment to give bond in case the defendant is a nonresident non resident the law of I 1 list winter I 1 res bond in such cases and to a t the he case before us uis the plaintiffs entered into toad load with approved sureties in other rea tats the proceeding iu in attachment attachments attach mentis is sub tanti ally aily according to the attachment law of March marcha 3 1852 it if this law is nt rep aled the arc c edings are valid the tle boni bon may be treated cd as surplusage at all events the de fEnda tits in attachment cannot object on that account jt it is a principle of law well weil settled betted that a pirty cannot take advant advantage ige of an error by which he is ia benefited I 1 this his brings us to the fil lil d and last point maile matle by counsel for gilbert gerrish to wit is ia the law of march 3 1852 le te pealed by the act ct regulating the mode of procedure in civil o aies in the courts of utah ap december 30 8 action 5 of he be act of march 3 1852 1832 under which it is claimed by the pa pla pia infra below that the writ of attachment attach mett melt can bp be sustained ready reads as follows fallows when any person or pe sons bhai shai have left the territory or shall not be a rob ros resident ident of the territory leaving bernd him hirm debts unpaid if bucl buci person or persons persona have property within the territory it may be lawful for such i to one ene out a writ of attachment jag elisi lucli abs absent ent debtor his bis goods chattels ard and elfed c s dued dueg and demands an I 1 all such properly property luo ino peny rues kues aes ues and demand shall be held to pil pit v all ali aalthe the debts such debtor shall have left uhn kid iid if upon a trial a judgment shall be bad against tue tub defend defendant atit 11 1 1 laws ofle fr 1 it aill alil be ebs cbs tved that this sta statute trite is for uhe the belfi be afi of p deong who bavie havie unpaid de debtors who Y ho bave have 1 atthe torri Torti tory tary or br who are don eon a OD of th tho jr territory and having property pro erty wl arl hin bin the territory the only ca cai se ae r 1 tiling out the attachment against gilbirt gilbert G gerrish gern Gerr e ibb ish as appears from the record was that they we e non residents upon this gr gp und the writ issued and their property attached irwill be well to keep this point in view as we pro TO reed to examine the law of dec rec 30 1852 1832 this ilia is an act to regulate proceedings in civil cases in the courts of utah approved some bome nine months after the act of march as 3 1852 this law contains the follo following whig repealing clause sit fit jil sll laws or parts of laws conflicting wilh with this act are hereby repealed section 14 provides when complaint is trade and ind substantiated substantiate d against a non resi resl dent or aasc indent debtor and the plaintiff has given the requisite security the court shall shail issue an arl order to the proper officer to take his 1 ro perty or sufficient thereof to liquidate the debt and cost costs coatland sand and appoint three competent persons who shall proceed forthwith under oath to appraise the property whereupon the court shall shail s all ali advertise its order in one newspaper princea in this territory and send a copy thereof to the be dependant deen dant if his residence is knon kno n or presumed and shail shall offer the property to the plaintiff for his acceptance cep tance and it if refused shall proceed to sell the same at public or pilate sale for money at not less than three fourths its appraise d value and pay th demands and depo deposit it any surplus into the county treasury to th the credit of the defendant anta anto and such defendant deafen rant tant may be heard bieard in the matter at any period within seven years section 15 provides upon complaint that defendant is a transient ran tient person or about to remove his himpe ty from the territory or is disposing posing of his poorly to defraud or secreting himself himself orp or property and is indebted to the plaintiff Js the court may issue an or er tue proper officer to take into im his custody such portion of his property as will satisfy the demand and costa costs and hold the B same bame subject to the order the court let it b be borne in mind that these sec ions are a part ot the code of civil procedure prescribed by the legislature for the courts of utah and passed subsequent to the attachment law relied ulon uron by pi in instills tills below all proceedings seeking the remedy therein provided must be commenced an I 1 car led on confor conformable mabe to the provisions it contain prescribing the iem yem dy and the mannen manner of enforcing it any and all othe looking to the sarn bam end is necessarily f the remedy in the section against a nonresident non resident or abscond ent debtor and in the section against agahan a t ancient person or one about to remove his bis proper property from the ry or disposing of it to defraud fraud or secreting himself or property properly is as ample and affords the creditor as perfect security as any any law usually enacted for such purpose by referring to and comparing the law of december 30 1852 with that of march 3 1852 it will be e found that the section of the cormer provides as complete a r medy for the creditor against a nonresident non resident or abacon dent debtor as sec 5 of the law approved tome come line tane months prior and no doubt was intended by the legislature to take the place ace af sad bad sad aad section it wi wili will also be f found dp t that hat the remedy provided in section 1 of the old la law iv against persons about to leave the arri territory without payi paying g th tb ir deb debts s is fully incorporated corp orated in section a act 15 of the new or subsequent law here then are two statutes each providing the remedy to be pursued by the creditor against nonresident non resident debtors the eld r law is ia called an attachment lan laa law lav 1 I the other othen how bow proceedings against non r debtors must be conducted in the coutts of utah gilbert gerrish gernish were sued by attachment as non nob residents upon this ground grouns aone the affidavit was made and the writ issued the tle n arises under which act the old or the he later law should the proceedings against them have been commenced and carried on certainly both are not in force it is a settled principle of law that a subsequent statute comaris com tom pris g the same subject matter and giving a similar remedy repeals the antecedent one even without repealing clause but the act of december 1852 contains a repealing clause and the principle of law above alove stated applies with much more force what is repealed most assuredly assur absure eily efly lly ily the prior statute op on the same subject giving the remedy against n n resident debtors and anc the later statute provid pr ovidii li g as ample a remedy in favor ot of creditors against such debtors debtor take its ita places lace but prescribes a different di mode to reach the remedy keeping in mind the last law points cut rut the course to be pursued in all civil cir cases in the courts of utah when the creditor invokes the aid of the courts to enforce the remedy given by law and that the law clearly directs hov how the ci editor creditor shall P p before ane court against a nonresident non resident debtor the conclusion is irresistible that such courte course and no other must roust be adopted hence we most moat unhesitatingly decide that the act of march 3 1852 1832 so far as reates to proceedings in attachment against non resi dent and abscond ent debtors was repealed by the act of dece december aber 30 1852 and all proceedings against gilbert gerrish in at ashment in pursuance of sald aali attachment lay law are voll the bequir ments meets of section 14 of the law of 0 1852 2 by which the plaintiffs pla below should have hav b been governed were not observed no order was issued by the court 28 as 28 therein directed the three ahr ee co competent corfe corpe tent persons persona to tot appraised the property were no appo appointed wied no ad advertisement vertle ement in the was waa anane rhese these are all concurrent aits acts and ei ebl ebi cs 1 bent sent tally the proceeding 1 t f it Is aid ald sald that the section of the ibe la law w of 1852 can ca only apply to cases in which doe dods s trot nt appear at the trial and as be lie has seven yearn tor ton a hear bear hearing hew bew be waives aives all al rights lights under this act by his bis appearance on the trial appearance cannot be denied any person the basis of the action is that he be is a nonresident appearance by attorney as 83 in this case does not charge his bis legal status if t e suit bult is maintained it can only be upon the ground aroun I 1 of non residence and arid if maint maintained dined to judgment judgments ments only by virtue of this ites as there is no other authorizing suit against a nonresident rs ident debtor if the position assumed by counsel be correct the thep p oce eding under this I 1 w should be dismissed if the party appeared by attorney this cannot be the may way have a heaning beaning anytime any time within seven ye years arsand aal ani if tot ot present at the trial he be may afterwards come in and upon sufficient chewing open up lip the judgment and resort to tile the bond for any aily d mage sustained by wrongful issuance of the order it is iso uso said that the legal question presented by the cannot be reached I 1 ty y certiorari this is a common law writ and commands the inferior court to send tip up the transcript the jobje object i ct is to inspect the record and asce tain whether the al ledged erro a of law have been committed DH ering from appeal in thir that on appeal the case is tried friex de noro eora and oil on certiorari by a review of the record the statue of utah provides that the th district courts shall have a general supervision 8 ion lon over all inferior courts to pl p events and correct abuses here where it no other remedy is p ovid ed the remedy by appeal would abt reach the mor of law committed ty ly the court in issuing te the writ of attachment as the case on appeal must roust be tried on oll it merl meri a the attachment proceed pg rig m is merely a auxiliary to the nain action and the he former may bt be set aside a d the iud jud judgment ment remain tu teil i bed especially is ia this the case wuen when there is an appearance as in this instance if errors in law are committed in the auxiliary proceedings proceeding they may be reached and corrected by certiorari lorari while the appeal from the jud in the main action would not be at all affected holding that all the attachment priced ings INV of the tile court below are erroneous and void for reasons given in this opinion they are therefore bel bet aside and held for nought and an order will be issued under thereal the seal of this court directing robert T burton sheriff of great salt lake coto county to release and restore to gilbert and G gerrish the pr perty attached as per invoice returned to tile the isgate P 0 abate court courts in the suit of william F dyer randolph 11 II dyer george 11 dyer robert walker samuel G maron mason and john ileth heth vs abel gilbert and william gerrish Gerr ish |