
    Oscar F. Washburn v. New York and Vermont Mining Company, and Theodore J. Allen, trustee.
    
      Process. Service. Trustee. Motion to dismiss.
    
    Where real estate is* attached and the defendant does not reside in this state, and has no tenant, agent or attorney in this state, the act of the officer serving the writ, in leaving a’ copy in the office where by law a deed of such estate is required to be recorded, with a description of the property attached, for the purpose of making the attachment and creating a lien thereon, does not constitute notice to the defendant, but, in such case, the statute (Gen. Sts., ch. 83, § 37) requires another copy, having the officer’s return thereon, to be left with the town cleric for the defendant, in order tó complete the service and constitute notice to the defendant.
    There can be no judgment against a trustee, unless there is first a judgment against the principal defendant, and where it is apparent that such judgment can not bo rendorod, as in case of want of service upon the principal defendant, and he does not appear and submit to the jurisdiction of the court, the trustee ought no't to be kept in court and the action will be dismissed on his motion.
    If the principal defendant waives tho want of service upon him, or defects in the form of the proceedings, th en the trustee can not take advantage of such defects, or want of service.
    Trustee process. The action was general assumpsit. The return on the writ was as follows:
    
      
      “ STATE OF VERMONT, 1 At Bridgewater in said county,. Windsor county, ss. j on tbe 5th day of April, A. D. 1867,. by virtue of this writ I attached, as the property of the within named defendants, all the real estate in the town of Bridgewater, bounded north by Barnard, east by "Woodstock, south by Plymouth,, and west by 'Sherburne. I also attached all the machinery, tools, and other property in the mill or building on the premises owned by said defendants, consisting of one safe, one water-wheel,, iron shafting and pulleys, and iron smelting-furnace; also drills, picks and water-pipes. And on the same day I lodged a true and attested copy of this attachment, with a description of the estate- and a list of the property attached, indorsed thereon, in the town clerk’s office of said town of Bridgewater; and on the same day I made service of this trustee writ on the within named Theodore-J. Allen, by delivering a true and attested copy thereof to Albert Hubbard, agent of said Theodore J. Allen, with this my return thereon indorsed.”
    The writ was returnable at the May term, 1867, and was entered in court, but the defendants made no appearance. The. trustee, Allen, filed a motion, at said term, “ to dismiss said action, so far as said Allen is concerned, and to discharge said Allen with his costs,” for the reason, among others stated, “ that, no service whatever has ever been made upon the debtors -named in said writ.” The court, Barrett, J., presiding,pro forma sustained the motion for said cause and dismissed the action, to which the plaintiff excepted.
    
      Norman Paul, for the plaintiff,
    maintained that the service on the defendants was in strict conformity with the requirements of the statutes, in a case of this kind, where the defendant is out of the state, and real estate is attached, and he has no tenant, agent or attorney in the state. Gen. Sts., ch. 38, § 22, § 37. The fact that the officer’s return does not show personal notice to the defendant, is not sufficient cause for dismissing a suit. Stevens v. Fisher, 30 Vt., 200; Ellsworth v. Learned, 21 Vt., 535; Beech v. Abbott, 6 Vt., 586.
    Any questions arising on defects in the writ, or irregularities in the manner of service, relating solely to the principal parties to the action, can be raised only by such parties to the original suit. Persons related to the matter in controversy in a collateral or an-ciliary manner, are barred from raising any dilatory questions affecting only tbe principals to the suit. Fletcher v. Bennett, 36 Yt., 659; Harding v. Harding andtr., 25 Yt., 487; McKenzie v. Hansom and trs., 22 Yt., 324.
    The trustee process is simply attaching the property of the defendant in the trustee’s hands, purely a collateral proceeding. Allen v. Beaver, 38 Yt., 673; Trombly et al. v. Clark and tr., 13 Yt., 118 ; Stearns et al. v. Wrisley, 30 Yt., 661.
    There are no defects of the papers that can be taken advantage of by motion, but if there are any, they can be reached only by pleas in abatement. Kellogg ex parte, 6 Yt., 509; Kelly v. Paris et al., 10 Yt., 261; Charlotte y. Webb et al., 7 Yt., 38.
    
      French §• Johnson, for the trustee.
    The motion to dismiss was properly sustained. There was no service or pretended service of any kind on the defendants. No copy for the, defendants was left with any person or at any time. Our statute requires, when the defendant is not an inhabitant of the state, and goods and chattels are attached, that a copy should be left with Ms “ agent or attorney, if any be known,” and if not, then left at the place where the goods and chattels were attached. Gen. Sts., p. 292, § 22. If real estate is attached, in such case the copy is to be delivered to his “ tenant, agent or attorney, if any be known,” and if not, then left in the town clerk’s office. Gen. Sts., p. 294, § 37; Slade’s Sts., p. 65, § 26.
    It is well settled, that the officer’s return must show a legal service according to the requirements of the statute, or the suit will be'dismissed. Swetlandv. Stevens, 6Yt., 577; Wheeler v. Barry, 8 Yt., 579 ; Keivton v. Adams et al.,4. Yt., 437; Chase v. Davis, 7 Yt., 476; Marvin v. Wilkins, 1 Aik., 107; Park et al. v. Harmon, tr.,-14 Yt., 211. A copy must be left with each defendant. Smilie v. Runnels et al., 1 Yt., 148. The trustee may take advantage of the want of service on the principal debtor. Huntington v. Bishop, tr., 3 Yt., 515. If the suit is improperly commenced by trustee process, the trustee may take advantage of it, and plead in abatement or move to dismiss. Fmerson et al. v. Paine, tr., 9 Yt., 271; Leach v. Cook, tr., 10 Yt., 239; Bradley v. Richmond, tr., 6 Yt., 121.
   The opinion of tbe court was delivered by

Pierpoint, C. J.

Tbe question comes before this court from tbe decision of tbe county court dismissing tbe action, on the motion of tbe trustee, for want of service on tbe principal debtors.

It is insisted on tbe part of tbe plaintiff, that tbe service on tbe principal defendants was sufficient. It appears from tbe return of tbe officer, that be attached upon tbe writ tbe real estate of tbe defendants and certain described personal property, by leaving a true and attested copy of tbe writ, with a description of tbe estate and a list of tbe property attached, indorsed thereon, in tbe town clerk’s office of tbe town of Bridgewater, and on tbe same day made service of “ this trustee writ on tbe within named Theodore J. Allen, by delivering a true and attested copy thereof to Albert Hubbard, agent of said Allen,” etc.

Tbe 37tb section of chapter 88 of tbe General Statutes, is that “ When tbe real estate of anyperson shall be attached, atrue and attested copy of such attachment, together with a description of tbe estate attached, shall be by tbe officer serving tbe same delivered to tbe party whose estate is so attached, or left at bis dwelling-house or last and usual place of abode; and tbe officer making such service, shall also leave a true and attested copy of such attachment, together with a description, of tbe estate so attached, in tbe office where by law a deed of such estate is required to be recorded, and if tbe party whose estate is attached, does not reside in this state, then such copy shall be delivered to bis tenant, agent or attorney, if any be known, and if no such tenant, agent or attorney be known, then a copy of such writ with tbe officer’s return thereon, lodged in tbe office in which a deed of such estate ought by law to be recorded, shall be deemed sufficient service.”

This section contemplates that a copy of tbe precept, with the doings of the officer serving tbe same indorsed thereon, shall be left with tbe defendant or with some person or at some place for Mm. This seems to be necessary to make tbe service complete, and tbe object is to give him notice of tbe proceeding, and of tbe nature of tbe demand that is made upon him, and of what be is called upon to answer to. In this case no copy was left with or for tbe defendants. It is claimed by tbe counsel for tbe plaintiff, that, as the defendants did not reside in this state and bad no tenant, agent or attorney in this state, the act of the officer serving ■tlie writ, in leaving a copy in the town clerk’s office with a description of the property attached, for the purpose of making the -attachment and creating a lien thereon, is a compliance with the statute, under the circumstances existing in this case, and that the ■act does not contemplate the leaving of any other copy with the town clerk for the purpose of notice to the defendant.

This construction of the statute, we think, is not correct. The copy left' with the town clerk to create the attachment, is not left for the defendant, but becomes a part of the files to be kept in the town clerk’s office, and from which he is to make the record required by law. He is not at liberty to give it to the defendant nor required to give him any notice of it. The copy required to be left with the town clerk for the defendant, is another and a differ>ent copy from that required to constitute the attachment. The latter is required to have only a' description of the property attached upon it. The former must have the officer’s return thereon. This may and often does constitute a material difference. "The officer’s return shows not only what was attached by him, by leaving the copy with the town clerk, but whatever else was done -either by attaching the personal property other than what is cov-ered by the copy so left, or by service upon a trustee, etc., all of which it is important to the defendant that he should be informed of, and which he could not learn from such copy left to create the attachment. Hence the propriety and. necessity of the requirement that a copy should be left containing such information. The leaving of a copy for the defendant, in cases, like the present, is ■the only service there is upon him. All the other proceedings have reference only to the .attachment of his property as security for the ultimate payment of the judgment, if the plaintiff succeeds in obtaining one. When such copy is left for the defendant, the -statute says it shall be deemed sufficient service. The service is then a legal service and enables the plaintiff to enter his suit in court and proceed with it there; but the law. does not regard this as sufficient notice : the plaintiff is still required to take certain prescribed steps with a view of giving notice to the defendant, in case he does not appear in the suit voluntarily.

As no copy was left for the defendants, there is no service upon them, there is nothing, that requires them to appear in court, and nothing can be presumed against them from the fact that they do not appear.

The question then arises, can the trustee take advantage of the want of service on the principal defendant ? Where the defendant appears in the suit, and submits himself to the jurisdiction of the court, and does not see fit to avail himself of want of service, or defect in the form of the proceedings, he may be regarded as waiving his objections; a judgment against him would-then be .good,- and the trustee could not take advantage of such defect, or want of .service; but where there is no appearance of the principal defendant, and it is apparent,'upon the face of the proceedings, that no judgment can legally be rendered against him, the trustee may well insist that the whole proceedings should be dismissed. There can be no judgment against the trustee, unless there is first a judgment against -the principal defendant, and where it is apparent that such judgment can not'be rendered, the trustee ought not to be kept in court.

Judgment of the county court is affirmed.  