1, Ancient Order of Hibernians, Division No. 1, of Anaconda, v. Sparrow

• Decision Date: 16 November 1903
• Citation: 74 P. 197,29 Mont. 132
• Parties: ANCIENT ORDER OF HIBERNIANS, DIVISION NO. 1, OF ANACONDA, v. SPARROW et al. v.
• Court: Montana Supreme Court

74 P. 197

29 Mont. 132

ANCIENT ORDER OF HIBERNIANS, DIVISION NO. 1, OF ANACONDA, v. SPARROW et al.

Supreme Court of Montana

November 16, 1903

Appeal from District Court Deer Lodge County; Welling Napton, Judge.

Action by the Ancient Order of Hibernians, Division No. 1, of Anaconda, Mont., against Charles W. Sparrow and others. From an order dissolving an attachment, plaintiff appeals. Affirmed.

T O'Leary and H. R. Whitehill, for appellant.

Rodgers & Rodgers and Geo. B. Winston, for respondents.

HOLLOWAY J.

On November 16, 1898, the Ancient Order of Hibernians, Division No. 1, of Anaconda, Mont., entered into an agreement with Edward B. White, a contractor and builder, by the terms of which White agreed to furnish the materials and erect a building for the order in Anaconda, for which he was to be paid the sum of $13,575, the building to be completed prior to December 1, 1898, and all the work to be done according to plans and specifications which were furnished. For the faithful performance of that contract White executed his indemnity bond in the sum of $3,500, with respondents Sparrow, Wegner, Radefeld, and Thiefenthaler as sureties, the condition of the undertaking being that, "if the said Edward B. White shall in all things comply with the contract in letter and spirit, and turn over to the said A. O. H. Div No. 1 of Anaconda the said building fully finished and completed in all its parts in strict compliance with the said plans and specifications, *** then the above obligation to be void, otherwise to remain in full force and virtue." The complaint alleges that, although White entered upon the work and performed a part of it, he abandoned the same before it was completed, and that the appellant was compelled to complete the same at a cost of more than $4,500 over and above the contract price of the building. The complaint then alleges that prior to the commencement of this action this appellant recovered a judgment against White for the breach of said contract in the sum of $5,440, and that White was soon afterwards adjudged a bankrupt without assets. The prayer of the complaint is for the full amount of the bond.

At the time of the commencement of this action and the issuance of summons, upon a proper affidavit being made and the undertaking required by law being given, the clerk of the district court issued a writ of attachment under which the sheriff of Deer Lodge county levied upon property belonging to the defendants. Thereafter the defendants appeared, and moved the court to discharge the attachment upon the ground among others, that the action is not founded upon a contract for the direct payment of money within the meaning of sections 890 and 891 of the Code of Civil Procedure. This motion was by the court sustained, and the attachment dissolved. From the order dissolving the attachment this appeal is prosecuted.

Section 890 of the Code of Civil Procedure provides as follows: "Sec. 890. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, *** as follows: In an action upon a contract, express or implied, for the direct payment of money, ***' Without question this is an action upon an express contract, and the only difficulty to be met with is in the proper construction of the phrase "for the direct payment of money." So far as we are advised, California and Oregon are the only other states having the same statutory provision. Colorado had prior to 1895. Sections 120 and 121 of the California practice act (St. 1851, p. 68, c. 5; sections 537, 538, Code Civ. Proc. 1897) contain the same provisions as our section 890, above, and those sections received construction by the Supreme Court of California in Hathaway v. Davis, 33 Cal. 161, where by a divided court it was held that an ordinary appeal bond was a contract for the direct payment of money within the meaning of sections 120 and 121, above. However, the majority of the court characterized its own opinion as not being very satisfactory. This decision was made the sole ground for holding that a bail bond was likewise a contract for the direct payment of money (San Francisco v. Brader, 50 Cal. 506); and upon the authority of these two cases the same court in Monterey v. McKee, 51 Cal. 255, held the official bond of the county treasurer was such a contract as is contemplated by the attachment statute.

It is contended by appellant that under the rule of construction that, where a statute is adopted from another state by this state, it is adopted with the construction given it by the highest court of that state, the decision in Hathaway v Davis is conclusive in this instance. It may be true, as assumed by counsel for appellant, that our section 890, above, was borrowed from California, and yet that is only an assumption, as there is nothing whatever to indicate that it is a fact. The expression "for the direct payment of money" does not appear in our attachment laws from January 15, 1869, to the adoption of the Code in 1895, at which latter date at least two other states had substantially the same statutory provision as California. However, this court will not blindly follow the construction given a particular statute by the court of a state from which we borrowed it, when the decision does not appeal to us as founded on right reasoning. We understand the rule to be "that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it" (Endlich on Interpretation of Statutes, § 371; Oleson v. Wilson, 20 Mont. 544, 52 P. 372, 63 Am. St. Rep. 639); or, as was said in Stadler v. First National Bank, 22 Mont. 203, 56 P. 114, 74 Am. St. Rep. 582: "When a particular statute has been adopted by this state from the statutes of another, after a judicial interpretation (suited to our condition) has been placed upon it by the parent state, the courts of this state are bound by the interpretation of the courts of the state whence it was adopted, or will at least accord respectful consideration to such interpretation and depart from it only for strong reasons." Prior to 1895 Colorado had an attachment statute which provided that the writ should issue upon the plaintiff making an affidavit "that the...