Blue Creek Land & Live Stock Co. v. Kehrer

• Decision Date: 13 April 1922
• Docket Number: 3731
• Citation: 206 P. 287,60 Utah 62
• Parties: BLUE CREEK LAND & LIVE STOCK CO. v. KEHRER et al. (INTERMOUNTAIN MILLING CO. et al., Garnishees)
• Court: Utah Supreme Court

206 P. 287

60 Utah 62

BLUE CREEK LAND & LIVE STOCK CO. v. KEHRER et al. (INTERMOUNTAIN MILLING CO. et al., Garnishees)

No. 3731

Supreme Court of Utah

April 13, 1922

Appeal from District Court, First District, Box Elder County; A. A Law, Judge.

Action by the Blue Creek Land & Live Stock Company against W. S Kehrer and another, defendants and Intermountain Milling Company and another, garnishees. From an order dismissing the writ of garnishment, plaintiff appeals.

AFFIRMED.

D. A Skeen and C. D. Moore, both of Salt Lake City, for appellant.

Young & Davis, of Brigham City, and Dickson, Ellis & Adamson, of Salt Lake City, for respondents.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an appeal from an order dismissing a writ of garnishment.

Plaintiff commenced an action in the court below to foreclose a mortgage on real property given to secure payment of a promissory note. At the time of filing its complaint plaintiff also caused to be filed an affidavit for the issuance of a writ of garnishment in accordance with certain provisions of Comp. Laws Utah 1917, § 6730. The writ was issued and served on the garnishee, whereupon the defendants appeared and moved to dismiss the writ on the alleged ground that the action being for the foreclosure of a mortgage on real estate, a writ of garnishment could not issue until a deficiency judgment had been entered. An affidavit was also made and filed by one of the defendants in support of the motion to the effect, among other things, that the note sued on was amply secured.

The trial court granted the motion, dismissed the writ, and released the garnishees.

Plaintiff assigns as error the order dismissing the writ.

The statute (section 6730, as amended by chapter 125, Sess. Laws 1919) relied on by plaintiff reads as follows:

"It is further provided that upon the commencement of any personal action, arising upon a contract express or implied or upon any judgment or decree already obtained, or at any time thereafter, the plaintiff may obtain a writ of garnishment by making and filing with the justice of the peace in a justice court or with the clerk of the court in which said action was brought an affidavit stating that he has good reason to believe and does believe that any certain person, firm or corporation, private or public, has property, money, goods, chattels, credits or effects in his or its hands or under his or its control belonging to the defendant or defendants, or any or either of them, or that such person, or persons, firm or corporation is indebted to the defendant; that the defendant is indebted to him or it on such contract, judgment or decree, sued upon, and that he is justly apprehensive of the loss of the same unless writ of garnishment issue. The garnishee thereupon is liable to the plaintiff from the time of the service of such writ to the amount of the aforesaid property or indebtedness belonging or due to the defendant and shall make answer to the writ as provided by law."

It was contended by defendants in the court below, and is also contended here, that the statute quoted does not authorize the issuance of a writ of garnishment in an action to foreclose a mortgage, at least, until a deficiency judgment has been duly entered.

It will be observed, that the statute in plain and unambiguous language allows the writ only in "a personal action, arising upon a contract express or implied or upon any judgment or decree already obtained." (Italics ours.)

The solution of the question involved manifestly depends upon what is meant by the words "personal action," as used in the statute. By the use of the words "personal action" the Legislature evidently intended that the right to the writ of garnishment should be limited to actions of that particular class. Whether the words imply an action in personam, as contradistinguished from an action in rem, as those terms are technically understood, or whether the words merely imply an action in which the plaintiff is entitled to a personal judgment only, is the question to which we will first address our attention. Considerable light may be shed upon the question by considering other statutes in pari materia, especially statutes relating to attachment and garnishment proceedings based thereon.

Section 6704, Comp. Laws Utah 1917, provides:

"The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant, not exempt from execution, 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: In an action upon a judgment or upon a contract express or implied, which is not secured by any mortgage, or lien upon real or personal property situate or being in this state, or, if originally so secured, when such security has, without any act of the plaintiff, or of the person to whom the security was given, become valueless. * * *"

The essential feature of this section of the statute, as far as concerns the instant case, is this: If the obligation upon which the action is commenced is secured by a mortgage or lien upon real or personal property, the writ of attachment will not issue unless the security has become valueless. In other words, it seems to have been the policy of the Legislature to deny the writ of attachment where the debt or obligation is already secured.

Referring now to the beginning of section 6730, supra: As far as material here the section reads:

"At the time of issuing the writ of attachment in an action, or at any time thereafter, the plaintiff may have a writ of garnishment issued, and thereupon attach the credits," etc.

From the language quoted it will be observed that the writ of garnishment will not be issued except where it is contemporaneous with or is preceded by a writ of attachment. We have already shown that the writ of attachment will not issue if the obligation is secured by a mortgage or lien upon property. Hence it follows that a writ of garnishment, under the provisions last quoted, will not lie where the debt or obligation sued upon is secured in the same manner. It is apparent, therefore, that the same legislative policy which was adopted in relation to writs of attachment was adhered to by the Legislature in relation to writs of garnishment, namely, to deny the writ in cases where the debt or obligation is secured by mortgage or lien upon property. Such was the state of the law until the legislative session of 1913, when the Legislature by amendment to the statute relating to garnishment enacted the provision upon which appellant now relies. See Sess. Laws 1913, c. 94. A slight amendment, has since been made causing the provision to read as hereinbefore quoted.

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