Advance Rumley Thresher Co., Inc. v. Ayres

• Decision Date: 22 April 1929
• Docket Number: 5031
• Citation: 47 Idaho 514,277 P. 20
• Parties: ADVANCE RUMLEY THRESHER COMPANY, INC., a Corporation, Appellant, v. J. H. AYRES, L. I. DELEA, GEORGE E. JENKINS, H. L. BARKER, ERNEST SMITH, WILLIAM AGNE, E. H. WILLIAMS and JOHN F. DIXON, Respondents
• Court: Idaho Supreme Court

277 P. 20

47 Idaho 514

ADVANCE RUMLEY THRESHER COMPANY, INC., a Corporation, Appellant, v. J. H. AYRES, L. I. DELEA, GEORGE E. JENKINS, H. L. BARKER, ERNEST SMITH, WILLIAM AGNE, E. H. WILLIAMS and JOHN F. DIXON, Respondents

No. 5031

Supreme Court of Idaho

April 22, 1929

CHATTEL MORTGAGES-SUMMARY FORECLOSURE-SERVICE OF AFFIDAVIT-COMPLIANCE WITH STATUTES.

1. C S., sec. 6380 et seq., as to summary foreclosure of chattel mortgages, must be strictly followed to authorize subsequent action for deficiency.

2. Under C. S., secs. 6380, 6381, as to summary foreclosure of chattel mortgages, mortgagee before delivering affidavit to sheriff to serve, with direction to seize and sell the property, must personally serve affidavit on all the mortgagors found within the county, and, if possible, obtain peaceable possession of the property, and absence of one of the mortgagors from the county will not excuse failure to serve the others.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Henry F. Ensign, Judge.

Action for deficiency after chattel mortgage foreclosure and sale. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

James R. Bothwell and W. Orr Chapman, for Appellant.

Service of the demand, affidavit and notice personally on the mortgagors in a summary foreclosure proceeding is dispensed with where all mortgagors cannot be found in the county wherein the mortgage is being foreclosed. (C. S., secs 6380-6382; Hudson v. Carlson, 31 Idaho 196, 170 P 100; First National Bank v. Poling, 42 Idaho 636, 248 P. 19; Tappin v. McCabe, 27 Idaho 402, 149 P. 460.)

James & Ryan, for Respondents.

Where chattel mortgages are foreclosed by methods prescribed by statute, and not by judicial proceedings, every requirement of the statute must be strictly complied with. (First National Bank v. Poling, 42 Idaho 636, 248 P. 19; 2 Wilsie on Mortgage Foreclosure, p. 1079, sec. 833; 11 C. J. 705 (54), p. 710 (55); Trudell v. Hingham State Bank, 62 Mont. 557, 205 P. 667 (syl., sec. 3); Pittock v. Jordan, 19 Ore. 7, 13 P. 510; Pickle v. Smalley, 21 Wash. 473, 58 P. 581.)

VARIAN, J. Budge, C. J., and Gwens and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

On August 24, 1921, the eight respondents executed their chattel mortgage to the Aultman & Taylor Machinery Company, covering a threshing machine, tractor, and threshing equipment, securing the payment of six installment promissory notes of even date therewith. After maturity the notes and chattel mortgage were assigned to appellant.

On September 26, 1924, one Shaw, agent for appellant, made affidavit for summary foreclosure of said chattel mortgage showing a total balance due thereunder of $ 2,805.71, and placed the affidavit in the hands of the sheriff, who took the mortgaged property into his possession on September 27, 1924, and sold the same on October 7, 1924. The sheriff's return of his proceedings is as follows:

"I hereby certify that under and by virtue of the hereunto annexed affidavit and notice of foreclosure and sale of mortgaged chattel property, I did on the 27th day of September, 1924, take into my possession the mortgaged property named in said affidavit, to-wit:

'One J. I. Case 26-46 Grain Separator # 88094, Gls Wind Stacker Case Feeder; Case Weigher, Hulling Attachment; 125-7-4 Drive Belt; One Aultman & Taylor 15-30 Tractor # 3892,'--and at the same time I served upon the Mortgagors, excepting H. L. Barker, a true copy of said affidavit and notice, also a notice in writing attached thereto, stating the names of the Mortgagee, and Mortgagors, the amount claimed to be due, a description of the property mortgaged and the time and place of sale and that I posted notices of sale as required by law in three public places in West Gooding Precinct, Gooding County, State of Idaho, where the property was to be sold and on the 7th day of October, 1924, I sold the same at public auction for cash to the highest bidder and delivered to the purchaser a certificate of sale and that the proceeds of said sale amounted to the sum of $ 1000.00 and after deducting my lawful fees of $ 30.30 I paid the remainder of $ 969.70 to M. E. Shaw, collector for Advance-Rumley Thresher Company, Inc., whose receipt is hereunto annexed.

"Dated this 7th day of October, 1924."

There is no notice of foreclosure and sale attached to the return filed in the office of the clerk of the district court.

The property was bid in at the sale by appellant, the proceeds applied toward the payment of the mortgage indebtedness, and on January 30, 1925, this action was commenced to recover the deficiency, attorney's fees, and costs.

Respondents answered, admitting the execution of the notes and chattel mortgage, denying the validity of the foreclosure proceedings, and by counterclaim alleging damages for breach of warranty, etc. At the close of appellant's testimony, respondents moved for nonsuit upon the ground that appellant had not followed the procedure prescribed by C. S., secs. 6380, 6381, and 6382, relating to summary foreclosure of chattel mortgages. The motion was denied, and at the close of all the testimony appellant moved for an instructed verdict, and respondents thereupon renewed their motion for nonsuit and asked for an instructed verdict, but not for any affirmative relief under their answer. The court denied all these motions, and submitted the cause to the jury. Judgment for costs in favor of respondents was entered upon a verdict in their favor.

Appellant assigns numerous errors in the admission of evidence, instructions to the jury, denial of appellant's motion for an instructed verdict, and in refusing to take the case from the jury upon respondents having moved at the close of the trial for an instructed verdict, etc. In view of the conclusion arrived at, it is not deemed necessary to consider any of appellant's assignments of error.

Respondents...