Anderson v. Ferguson

• Decision Date: 21 April 1936
• Docket Number: 6181
• Citation: 56 Idaho 554,57 P.2d 325
• Parties: C. E. ANDERSON, Respondent, v. H. K. FERGUSON, MAUD FERGUSON and CLIFFORD FERGUSON, Respondents, and KENNETH FERGUSON, Intervener and Appellant
• Court: Idaho Supreme Court

57 P.2d 325

56 Idaho 554

C. E. ANDERSON, Respondent, v. H. K. FERGUSON, MAUD FERGUSON and CLIFFORD FERGUSON, Respondents, and KENNETH FERGUSON, Intervener and Appellant

No. 6181

Supreme Court of Idaho

April 21, 1936

LIMITATION OF ACTIONS-PERIOD OF LIMITATION-INTERVENTION-PROPERTY IN CUSTODY OF THE LAW-EXECUTION.

1. Property in custody of law is not liable to be sued for, and statute of limitations does not run against right to such property (I. C. A., sec. 5-201 et seq.).

2. Statute of limitations is mere privilege, personal only to party liable, and does not pay debt or satisfy obligation (I C. A., sec. 5-201 et seq.).

3. Statute of limitations does not run against right to fund in custody of court clerk or registrar, as court records witness manner and purpose of fund coming into its custody (I. C. A sec. 5-201 et seq.).

4. Execution does not run against money in custody of court since court has inherent power to control fund in hands of its clerk and direct its distribution.

5. Clerk of court holding money, not as an individual but as an officer of court, may not be sued for money so held.

6. Intervener takes case as he finds it.

7. Where proceeds of sale of property were deposited in court pursuant to stipulation, to be turned over to one entitled thereto, claim of assignee of one of defendants to that portion of proceeds attached by plaintiff as property of such defendant, although presented by intervention more than four years after attachment, but prior to trial of case, held not barred by limitations since complaint in intervention before trial was timely (I. C. A., secs. 5-218, 5-224 and 5-322).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Action for recovery on promissory note. Complaint in intervention filed. From judgment dismissing complaint in intervention intervener appeals. Reversed and cause remanded, with instructions.

Judgment reversed and cause remanded with direction. Costs awarded in favor of appellant.

S. Ben Dunlap, for Appellant.

An intervener claiming the fund deposited in court pursuant to stipulation between plaintiff and defendant has a right to intervene in the action. (Pence v. Sweeney, 3 Idaho 181, 28 P. 413; Potlatch Lbr. Co. v. Runkel, 16 Idaho 192, 101 P. 396, 18 Ann. Cas. 591, 23 L. R. A., N. S., 536; Van Loben Sels v. Producers' Fruit Co., 36 Cal.App. 201, 179 P. 403.)

One who has the right so to do may intervene in an action at any time before trial, the limitation as to the time for filing complaint in intervention, therefore, is not limited except that it must be filed before the trial. (Sec. 5-322, I. C. A. 1932; Van Loben Sels v. Producers' Fruit Co., supra; Equitable Trust Co. v. Great Shoshone & T. F. W. P. Co., (C. C. A., 9th Dist.), 245 F. 697, 158 C. C. A. 99; Union Trust & Sav. Bank v. Idaho S. & R. Co., 24 Idaho 735, 135 P. 822; People v. Green, 1 Idaho 235.)

The commencement of a proceeding before the expiration of the statutory period of time allowed for bringing the action inures to the benefit of the party who intervenes after the expiration of such period. Consequently the statute of limitations is not available as a defense to the petition of such intervener. (Field v. Gantier et al., 8 Tex. 74; Foote v. O'Roork et al., 59 Tex. 215; Becnel v. Wagnespack (Becnel, Intervener), 40 La. Ann. 109, 3 So. 536.)

R. B. Scatterday and Stewart S. Maxey, for Respondent Anderson.

Intervener's cause of action accrued at the time of the levy of attachment. (Havird v. Lung, 19 Idaho 790, 115 P. 930; Common School Dist. No. 18 v. Twin Falls B. & T. Co., 52 Idaho 200, 12 P.2d 774.)

Statutes of limitations begin to run at the time the cause of action accrues. (Common School Dist. No. 18 v. Twin Falls B. & T. Co., supra; Perkins v. Swain, 35 Idaho 485, 207 P. 585, 34 A. L. R. 894.)

The right to intervene in an action before trial provided by sec. 5-322, I. C. A., does not extend the period of limitation as to the cause of action alleged. (U. S. Promotion Co. v. Anderson, 100 Ohio St. 58, 125 N.E. 106; Patterson v. Peaslee-Gualbert Co., 174 Ky. 47, 191 S.W. 670, L. R. A. 1917D, p. 882, note, p. 885.)

Intervener's cause of action is barred by the provisions of secs. 5-218 and 5-224, I. C. A. (Secs. 5-218, 5-224, I. C. A.; Richmond Eng. & Mfg. Corp. v. Loth, 135 Va. 110, 115 S.E. 774; Davis v. Arthur, 170 Mass. 449, 49 N.E. 739.)

AILSHIE, J. Budge and Holden, JJ., concur. GIVENS, C. J., Morgan, J., Dissenting.

OPINION

AILSHIE, J.

This is an appeal from a judgment dismissing appellant's complaint in intervention filed in the trial court. The judgment of dismissal was predicated on an order sustaining the demurrer to the complaint on the ground that appellant's claim was barred by the statute of limitations (by both secs. 5-218 and 5-224, I. C. A.). The action in which appellant sought to intervene was originally commenced by respondent C. E. Anderson against H. K. Ferguson, Maud M. Ferguson and Clifford Ferguson, which action was instituted on October 24, 1928. At the time of the commencement of the action an attachment was issued and was levied upon "an undivided one-half interest in 62 head of Duroc Jersey hogs," on the 26th day of October, 1928. At the time of the levy appellant served written notice on the sheriff that he was an owner of an undivided one-half interest in these hogs. It appears that the plaintiff Anderson immediately executed and delivered to the sheriff an indemnity bond and the sheriff retained possession of the hogs.

It seems to have been admitted by all parties that the other undivided half interest in these hogs belonged to one Sylvester Hill. Thereafter on November 7th the attorneys for the respective parties (except the appellant) entered into the following stipulation:

"It is hereby stipulated by and between R. A. Russel attorney for the plaintiff herein and Stone & Jackson, attorneys for the defendants herein, that the hogs attached in said action in which Sylvester Hill is the owner of an undivided one-half interest, are to be sold by the said Sylvester Hill at such time or times as he believes said hogs to be fit for market, and that one-half of the amount received from the sale of said hogs is to be turned over to the Clerk of the District court to be held by her until a final decision of said case, when the money is to be turned over to the party the court decides is entitled to the same.

"It is hereby understood that nothing in this stipulation is to interfere with any of the rights of Kenneth Ferguson who claims a third party interest in said property.

"Dated this 7th day of November, 1928."

Immediately following the making of the foregoing stipulation the hogs were sold by Hill, and one-half of the proceeds, amounting to $ 447.85, was deposited with the clerk of the court in accordance with the terms of the stipulation. The case alternately slumbered and revived with intermittent motions and demurrers until October 27, 1930, at which time the plaintiff procured an order permitting him to file a second amended complaint against H. K. Ferguson and Maud M. Ferguson and to drop the defendant, Clifford Ferguson, from the case. So far as the record shows, Kenneth Ferguson never prosecuted any action against the sheriff in replevin of this property nor for conversion of the property. It is clear, however, that he rather elected to pursue the funds realized from the sale of the property under the stipulation entered into as above set out. Accordingly on December 6, 1932, while the main action was still pending appellant presented and was permitted to file his complaint in intervention.

Now, for the purpose of determining whether or not appellant's complaint in intervention was sufficient to entitle him to be heard, we will examine the allegations of the petition. They are as follows:

I.

"That this action was commenced by plaintiff to recover judgment against defendants, H. K. Ferguson and Maud M. Ferguson, husband and wife and Clifford Ferguson for money alleged to be due on two certain promissory notes which are set out and described in the complaint; that thereafter, an attachment was issued in this cause and on Oct. 26, 1928, a levy thereof was made upon certain hogs as the property of the defendants, H. K. Ferguson, and Maud M. Ferguson, husband and wife and Clifford Ferguson; that thereafter, on or about October 2, 1930, plaintiff, C. E. Anderson moved to dismiss this action against the defendant, Clifford Ferguson and for leave to file an amended complaint against H. K. Ferguson and Maud M. Ferguson, husband and wife; that thereafter, an order dismissing this action against the defendant, Clifford Ferguson and for the filing of the said amended complaint, was duly and regularly entered and made herein by the court.

II.

"That on or about the 1st day of January, 1927, one G. Clifford Ferguson, who was one of the defendants herein, entered into a written agreement with one Sylvester Hill, for the purpose of carrying on general farming operations upon a certain ranch then owned by said Hill in Canyon County, Idaho; that a copy of said partnership agreement is hereunto attached marked 'Exhibit A' and is by this reference made a part hereof. That the said G. Clifford Ferguson and the said Clifford Ferguson, formerly defendant herein, are one and the same person.

III.

"That on or about the 24th day of October, 1928, the said G Clifford Ferguson was largely indebted to intervener herein for money borrowed and for the purpose of making partial payment of said debt to intervener, said G. Clifford Ferguson by written instrument assigned, transferred, sold and delivered all of his right, title and interest in the said agreement of partnership...