dissenting. — Unable to concur in tbe foregoing opinion, I proceed to state tbe grounds of my dissent. It will be observed from the facts stated, that it is a proceeding in equity, to set aside a judgment at law, and certain conveyances made by virtue of a judicial sale thereunder. The judgment sought to be relieved against, was obtained by a proceeding in attachment, which had been regularly issued and levied upon the property which is now the subject of this controversy.
This suit in equity is instituted, not by the judgment debtor, but by one who had purchased the property of him after it had been attached. It is not pretended but that the Court had jurisdiction of the writ of attachment by the filing of the proper petition, affidavit and bond, and with its process, had seized and taken into its legal custody the property in question, previous to the plaintiff’s purchasing the same. He was, therefore, a mala fide purchaser, yet he invokes a court of chancery to declare, by its decree, that this judgment, in the attachment proceeding, is void, and should be set aside; not because of any fraud, accident or mistake in the rendition thereof, but for the other only cause in virtue of which equity will presume to disturb judgments at law — namely, thewánt of jurisdiction. The plaintiff, as the ground of relief which he asks, alleges that there was no legal service upon the defendant in the attachment suit, and as a consequence of this, the judgment and all the proceedings thereunder, were void. The defendants in that suit had been sued as absconding debtors, notice of the pendency of the attachment had been duly published. But the record is silent as to whether a copy of the notice and petition in said suit, had or had not been sent through the mail, to the post office address of the defendants making default, or whether an affidavit excusing the omission of this requirement, had or had not been filed fin the cause. It is claimed that this latter requirement is an element of *106jurisdiction, and must be complied with before tbe court had power to act. And so this Court has held in one class of cases, and whilst I have never been able to concur in this construction of the statute, still I do not place my dissent in this case on that ground, but upon the marked distinction which exists between the cases referred to, and the one now under consideration. The profession very well understand that there are two classes of cases, in which, if the defendant is a non-resident, or cannot be served personally, he may be brought before the court by publication. To the first of these classes belong suits in partition, foreclosure of mortgages and tax titles, specific performance, and cases for divorce, &c. In this class of cases, the court has no power to act until the defendants are brought before it in the manner prescribed by law. There is nothing in" the statute or in the nature of the cases which requires the Court to take any step or make any order in the proceedings touching the rights of the parties or the subject matter of the controversy, until its jurisdiction is obtained over the person of the defendants by due service. Now, in marked contrast with this, is the other or second class of cases, usually termed actions in rem, such as proceedings in attachment and against boats and rafts. In this class of cases, the suit is commenced, not by an ordinary notice, to be served personally on the defendant, or constructively by publication, as in the first class of cases above referred to, but by the issuing of a writ, or the process of the Court, under its seal, and directing the officer to seize the property of the defendant, and to take it into the custody of the law. After this, the sheriff is required to return his writ into Court, with his doings thereon duly endorsed. When this is done, the property is thereby bound from the time of the levy of the attachment. The sheriff is required to keep the same safely subject to the order of the Court. He is also required to make such disposition of the property *107attached, as the Court may direct, from time to time. If perishable, it may be sold at once. Section 3216 of the Revision authorizes the Court, or the judge in vacation, at any time to appoint a receiver, to take possession of the property attached, and to collect, manage and control the same. And all this the Court is authorized to do before it is possible to affect an absconding or non-resident defendant with notice by publication, or through the post office by mail.
Now, I take it, that when a point or stage in a judicial proceeding is reached where the statute makes it the duty of the Court to act upon the rights of the parties, or to deal with the property seized by its process and taken into its custody, that its jurisdiction has attached. The object of the writ and process is to give jurisdiction, and its levy thereon draws the thing concerning which the Court is to deal or pronounce judgment within its power. Yet in the case of Merritt against the Tibbetts, which was a suit by attachment regularly issued and duly levied, followed with notice by publication, it is claimed that the Court never acquired jurisdiction, because it does not appear that the plaintiff sent through the post of&ce a copy of the notice and petition to a defendant absconding, so that the ordinary process of the law could not be served upon him. This assumption, in view of what the statute requires of the Court in such case, involves the absurdity, that the Court has and has not jurisdiction of the property seized in attachment at the same point of time.
But we are not without authority upon this question. In the State of New Hampshire, Vermont, New York, Ohio, Indiana, Illinois, Iowa, and by the Supreme Court of the United States, it has been repeatedly held, that it was the seizure of the property in attachment which constituted the jurisdictional act. I will refer to a few cases as a fair type of all.
*108Iii the case of The Lessees of Paine v. Mooreland, 15 Ohio, 485, it was held, that the Court acquired jurisdiction in attachment by the issuing of process predicated upon the requisite affidavit and the attaching of the property; and if after thus obtaining jurisdiction, the Court proceed to render judgment without the publication of the notice, such judgment is not void and cannot be impeached, but must be reversed upon writ of error. This case in its facts was very similar to the one at bar. Both parties derive title from the same person, the plaintiff, by direct purchase — the defendant under a sale in attachment. But no publication of notice of the pendency of the attachment was made, and it was claimed that the proceedings under the same were void. On this question, B.ead, J., held the following language: “What, then, gives the Court jurisdiction in a proceeding in attachment ? The filing of the proper affidavit, issuing the writ, and attaching the property. The moment the writ goes into the hands of an officer he is authorized and required to seize the property. When this is done the property is taken out of the possession of the debtor into th.e custody of the law. The Court has authority at any time after the return of the writ to direct the property of a perishable nature to be sold. It is not until after the return of the writ that the clerk is directed to make out the advertisement, which the plaintiff is required to have published as the statute directs. * * It is contended that the Court has no jurisdiction and yet the statute authorizes the Court to exercise a judicial act over property attached, namely, to determine whether is is perishable, and if so, to direct its sale. * * * * The distinction is between a lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of the power. In the first instance, all acts of the Court not having jurisdiction or power are void — in the latter, voidable only. A Court, then, may act, first, without power or jurisdiction; *109second, having power or jurisdiction may exercise it wrongfully ; or third, irregularly. In the first instance, the act or judgment of the Court is wholly void, and is as though it had not been done; the second is wrong and must be reversed on error; the third is irregular and must be corrected by motion. Hence there is a vast distinction between a defect of power, a wrongful exercise of power, and an irregular exercise of power.” In accordance with this doctrine it was held, that if the jurisdiction of the Court attached, as it did, by levy upon and seizure of the property, subsequent irregularities would render the judgment voidable only; and it would remain v^lid until reversed, and cannot be impeached collaterally. Such appears to have been the decision of the Courts in Parker v. Miller, 9 Ohio, 108; Adam's Lessee v. Jeffries, 12 Id., 272; Mitchell v. Eyster, 7 Id., 257; Lessees of Cochran's Heirs v. Loring, 17 Id., 409; Gilman v. Thompson, 11 Verm., 643; Rowan et al v. Lamb, 4 G. Greene, 468; 1 Cart., (Ind.), 296.
In the case of Voorhees v. The Bank of the United States, 10 Pet., 449, recognizes the same general principle. The Court says that “ the want of evidence of publication upon the record was at most but error, and did not vitiate the proceedings.”
In Gilman v. Thompson, 11 Verm., Mr. Justice Collamer said that the courts obtain jurisdiction over the persons of defendants by the service of process either on their bodies or on their property. The attachment of the property is one thing, and notice to the party is another. They are different commands, and the officers have distinct duties to perform for these purposes.” * * * “ If the officer,” says this distinguished judge, “ attach real estate and leave a copy with the town cleric, he has made an' attachment, and the Court has jurisdiction of the party. If the return also shows notice it is well, if not it is merely cause of abatement ”; that is, the proceeding is not rendered *110void for want of notice if the jurisdiction be had by the attachment of the property. In the 6 th volume of Vermont Reports a case is reported as an action of debt on a transcript of a judgment obtained by attachment, without actual notice to the defendant. It was held that this did not render the judgment void, for the reason that it was the seizure of the property which gave jurisdiction to the Court.
Now, the case at bar is an application to a court of equity for relief against a judgment in an attachment suit. The plaintiff bases his right to relief in the premises alone upon a charge that the judgment was void, the Court never having acquired jurisdiction for the reason stated.
With me, the authorities to which I have referred, are on this point conclusive, and they show that the plaintiff’s ground of complaint is without foundation. But my brethren decline to consider these authorities, because the defendant’s counsel did not in his argument seek to sustain the jurisdiction of the Court in the attachment suit, upon the principles laid down in the same. I do not so interpret my duties as a member of this Court. I think the rights of the parties in an equity case, being tried upon the merits, should be disposed of and adjusted in accordance with the rules of law and practice applicable to the case, and not what counsel may or may not say in the argument.
They say they prefer to follow the rulings of this Court in other cases upon this subject. My reply to this is, that these cases in their motives, aims, characteristics and processes are obviously distinct from the class of cases known as actions in rem, and therefore should not be authority in this case. In my opinion the plaintiff’s bill should have been dismissed.