Bannock Title Co. v. Lindsey
| Decision Date | 20 December 1963 |
| Docket Number | No. 9298,9298 |
| Parties | BANNOCK TITLE COMPANY, a corporation, Plaintiff-Respondent and Cross-Appellant, v. Maxine A. LINDSEY, now Maxine A. Corbett, Defendant-Respondent and Cross-Respondent, W. D. Hale, Defendant-Appellant and Cross-Respondent, N. H. Patton, Lester Rosen, Kenneth Harten, Patton and Linton, Inc., a corporation, and American Casualty Company of Reading, Pennsylvania, Defendants-Respondents and Cross-Respondents. |
| Court | Idaho Supreme Court |
Robert W. Bennett, Pocatello, for appellant and cross-respondent, W. D. Hale.
O. R. Baum, Ben Peterson, Pocatello, for respondent and cross-appellant, Bannock Title Co.
Milton E. Zener, Pocatello, for respondent and cross-respondent, N. H. Patton.
A. A. Merrill, Idaho Falls, for respondent and cross-respondent, Maxine A. Lindsey, (now Maxine A. Corbett).
This declaratory judgment action was instituted by the Bannock Title Company, hereinafter referred to as the Title Company, seeking an order of the court directing how a certain fund it held should be disbursed. The fund in the amount of $8,131.04, represents the remaining balance of the proceeds of sale by Maxine A. Lindsey, (now Maxine A. Corbett) of what initially was her home and that of her former husband, Don Lindsey. The sale of this home (referred to herein as the 'home property'), was made pursuant to the terms of a certain written stipulation entered in a district court action in Bannock County, brought by W. D. Hale against Don Lindsey, doing business as Lindsey Construction Company, Inc., and his wife, Maxine A. Lindsey, (referred to herein as the Hale-Lindsey action). The stipulation, dated December 21, 1959, was executed by Maxine A. Lindsey, W. D. Hale, and various secured creditors of Don and Maxine A. Lindsey, which creditors held as security either a mortgage or materialmen's liens on the home property. The stipulation, while executed and of record in the Hale-Lindsey action, was admitted in evidence in the instant cause, and provided that notwithstanding the property had been attached, Maxine Lindsey could sell it, and from the proceeds pay the named secured claimants holding the liens, with the balance of the proceeds to be held by the Title Company for disposition to the other claimants, who are the defendants in the instant action, subject to the order of the court. The home property was sold, the claimants secured by the liens on that property paid, and the balance of the proceeds deposited with the Title Company.
The answering defendants in the instant action are parties who claim an interest in the fund by reason of attachments on the home property arising in other actions, or by reason of claimed liens or interests. Defendant Hale, the appellant, in his complaint filed on May 13, 1959, in the Hale-Lindsey action, brought suit against Don Lindsey and also Maxine A. Lindsey, who at that time were divorced. In his complaint Hale alleged that he had purchased from Don Lindsey Construction Company, Inc., a certain 'fourplex' building situate on lots in Block 22, Pocatello Townsite, (which property is hereinafter referred to as the 'fourplex' to distinguish it from the 'home property'); that Don Lindsey did business either individually or under the corporate name, but he, owning all the stock in the corporation, was one and the same as the corporation; that Hale in purchasing the 'fourplex' paid Lindsey $9,000 and assumed a $21,000 mortgage for the real property, and in exchange received a warranty deed to the property from the corporation; that Hale took possession of the property on February 11, 1959, (while Don and Maxine A. Lindsey were still married) and that subsequently there were laborer's and materialmen's liens of over $11,000 filed against the 'fourplex' property. That Lindsey failed and refused to pay these liens. Hale sought judgment for the amount of the liens filed. A writ of attachment was issued May 13, 1959, on the basis of Hale's affidavit, and levied on both the home and 'fourplex' property. On Hale's motion, levy under this writ of attachment was discharged as to the 'fourplex' and also as to the home property. A new affidavit of attachment was filed, claiming only $8,584.89 in liens filed against the 'fourplex', and June 10, 1959, another writ of attachment was issued, with an amended complaint filed June 11 1959. The sheriff's return to this latter writ shows his levy on the home property being made June 11, 1959. That action was dismissed as to Maxine A. Lindsey, she not having been served. Default judgment was entered against Don Lindsey and Don Lindsey doing business as Lindsey Construction Company, Inc., for the sum of $8,331.59, which judgment recited that the real property designated as the home property had been attached, and the court decreed the amount of the judgment constituted a lien against the home property as of June 11, 1959, the date of the sheriff's levy.
The home property, the subject of the attachment and the stipulation, was involved in the divorce action brought by Maxine A. Lindsey (another of the answering defendants herein) against Don Lindsey. Decree of divorce in that action was entered in the district court of Power county on March 13, 1959. That decree in addition to dissolving the marriage, divided the real and personal property of the parties, Don Lindsey being awarded as his sole and separate property the home property, the subject of the attachment in the Hale-Lindsey action.
The decree also burdened Don Lindsey with a $2,000 obligation owing to Lester Rosen, the father of Maxine A. Lindsey, he being one of the defendants in the instant action. The decree also provided that such obligation was a lien on the home property, to be paid upon sale of the property or within three years.
N. H. Patton, another of the answering defendants named in the present action, brought suit against Don Lindsey, based on nonpayment of a $5,000 promissory note, and writ of attachment issued, which was levied on the home property the day following the attachment in the Hale-Lindsey action, i. e., June 12, 1959. Default judgment in this action was entered on September 6, 1960.
On July 6, 1959, a certified true copy of the divorce decree from Power County was recorded in Bannock County. On the same date, Don Lindsey executed an assignment of all interest in the home property to Maxine Lindsey, together with a quit claim deed to her of that property, and Maxine Lindsey filed a Declaration of Homestead on the property; these last three instruments were recorded by her on July 6, 1959, in Bannock county. Between March 13 and July 6, record title to the home property was in Don Lindsey as his sole and separate property.
The instant action was heard by the trial court on the pleadings and stipulations of the respective parties. Maxine A. Lindsey's answer sought disbursement of the funds held by the Title Company as follows: First to pay such legal charges to the Title Company as fixed by the court; secondly: to pay Lester Rosen $2,000 plus interest, and finally the balance to her. The answer of N. H. Patton sought priority for payment of his judgment based on the promissory note of $5,000. The answer of W. D. Hale sought payment of the funds to him, or in the alternative the funds be pro rated among the various defendants, with credit to be given him by reason of another lien against the 'fourplex' filed by McLelland Lumber Company
The trial court submitted a memorandum of decision with findings of fact and conclusions of law and entered its decree: That Hale's attachment was void, and distributing the funds in the following order: (1) to the Title Company for its costs of suit, plus $32.00 as its fee in distribution of the funds; (2) to N. H. Patton, the full sum of his judgment in the case of N. H. Patton v. Don Lindsey; (3) to Lester Rosen $2,000, or so much thereof as funds permit after payment of the first two items; and (4) balance, if any, to Maxine A. Lindsey.
From this decree, W. D. Hale appeals; Bannock Title Co., also cross-appealed claiming it is entitled to fees as a trustee and attorney's fees.
Appellant Hale contends that by reason of his attachment of June 11, 1959, he is entitled to being first reimbursed, or at least that his claim should pro rata with that of N. H. Patton. Respondent Patton claims that Hale's attachment of June 11, 1959, was invalid, first because it was not such a claim for which an attachment may issue, and secondly because of a prior writ of attachment having issued, and the levy of the writ of attachment of the real property having been released on Hale's motion, a subsequent attachment could not issue.
Maxine Lindsey challenges Hale's position and states: '* * * the Patton judgment and attachment is not good as against Lindsey and her father Rosen, and the court had no jurisdiction to decree that Patton came before Lindsey and Rosen in so far as the distribution of the trust funds, held by the Bannock Title Company is concerned.' However, no cross-appeal from the decree was filed by Maxine Lindsey, and the issue as to the validity or priority of the Rosen claim is not now before this Court.
The first issue for determination is whether an attachment may properly issue on a claim for relief as set out in the complaint in the Hale-Lindsey action. I.C. § 8-501 provides:
'The plaintiff at the time of the issuing of summons, or at any time afterwards may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as in this chapter provided in the following cases.
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U.S. v. Schwimmer
...based on a mistake. The trial court granted the petition, and the appellate court affirmed. Similarly, in Bannock Title Company v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963), a creditor was permitted to attack a previous judgment against the debtor by a competing creditor because the judgm......
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