Citizens Auto. Inter-Insurance Exchange v. Andrus

• Decision Date: 09 December 1949
• Docket Number: INTER-INSURANCE,Nos. 7572,7547,s. 7572
• Citation: 212 P.2d 406,70 Idaho 114
• Parties: . Supreme Court of Idaho
• Court: Idaho Supreme Court

Page 406

212 P.2d 406

70 Idaho 114

CITIZENS AUTOMOBILE INTER-INSURANCE EXCHANGE v. ANDRUS.

ANDRUS v. DISTRICT COURT OF THIRD JUDICIAL DISTRICT et al.

Nos. 7572, 7547.

Supreme Court of Idaho.

Dec. 9, 1949.

Budge & Clemons, Boise, for Citizens Automobile Interinsurance Exchange and others.

Ariel L. Crowley, Boise, for Milo D. Andrus.

PORTER, Justice.

On March 31, 1949, the appellant in case No. 7572, filed a complaint in Ada County entitled Citizens Automobile Inter-insurance Exchange, a corporation, plaintiff, v. Milo D. Andrus, doing business as Andrus Agency, defendant. By such complaint it was alleged that the defendant between the 1st day of August, 1948, and the 31st day of March, 1949, wrote policies of insurance in the plaintiff corporation and collected premiums therefor between August 1, 1948, and February 28, 1949, in the total amount of $23,551.65; and that between the 1st day of March, 1949, and the 31st day of March, 1949, the defendant wrote additional policies of insurance in the plaintiff and collected premiums therefor in the approximate sum of $6,000, the exact amount being unknown to plaintiff; that all of said premiums were collected for and should have been remitted by defendant to the plaintiff; that none of said sums has been remitted; that the defendant has and does not refuse to pay the plaintiff the amount due prior to March 1, 1949, or the amounts due subsequent thereto; and that all of said sums are due and unpaid.

On the same date, appellant filed an affidavit for attachment alleging among other things that defendant is indebted to plaintiff in the sum of $23,551.65 as of February 28, 1949, and subsequent thereto in the further approximate amount of $6,000, upon an express contract for the direct payment of money; and that the same is now due and owing. Likewise, on the same date, appellant filed an undertaking on attachment in the sum of $30,000.

On April 4, 1949, respondent filed motion to dissolve attachment. Such motion was based upon the records and files and upon the affidavit of respondent filed therewith. Such affidavit in general alleges that the affidavit for attachment fails to state the amount owing; that the time for remittance had been extended by oral agreement for 90 days from February 20, 1949; and that such affidavit for attachment was false in declaring the amounts therein stated to be owing over and above all legal counterclaims and offsets which were by appellant well known to exist.

On April 22, 1949, appellant filed a motion for leave to amend the complaint by deleting the words 'a corporation' following the name of the plaintiff and for an order permitting the plaintiff to file an amended complaint, amended affidavit on attachment, amended undertaking on attachment and to amend the other files in the action accordingly. By the accompanying affidavit of Hamer H. Budge, one of the attorneys for appellant, it is made to appear that, at the time the complaint was filed, he had been informed that appellant was a corporation, when in fact, it is an unincorporated reciprocal insurance exchange. On the same date, the court entered an order permitting the amendments as prayed for in said motion. Whereupon, on the same date, appellant filed an amended complaint, amended affidavit and amended undertaking, in accordance with the court's order. By the amended complaint and amended affidavit, it was also alleged that since the filing of the original complaint, a trust account set up by the parties in the Continental State Bank of Boise, in the sum of $2,479.24, had been checked out by appellant, leaving a balance owed by respondent of $30,462.29.

On April 28, 1949, respondent moved to strike the amended complaint and also filed a general demurrer thereto. Respondent also filed a motion to dissolve the attachment accompanied by affidavit of respondent to the effect that on February 24, 1949, an oral agreement was made between the plaintiff and the defendant whereby the defendant was not required to remit for 90 days thereafter. On May 3, 1949, the motion to strike, the demurrer to the amended complaint and motion to dissolve attachment were submitted to the court and taken under advisement. On May 11, 1949, the court sustained the general demurrer to the amended complaint and granted plaintiff 10 days in which to file a second amended complaint. At the same time the court entered an order that the attachment be vacated, discharged and dissolved. No ruling was made on the motion to strike.

In the meantime, pursuant to the writ of attachment, the sheriff of Ada County had levied upon the office furniture, the automobile and bank accounts of respondent and had garnisheed a number of his debtors. His real estate was also levied upon.

On May 21, 1949, the plaintiff filed its second amended complaint to conform to the court's ruling sustaining the demurrer to the first amended complaint.

On May 20, 1949, M. D. Andrus filed an original proceeding in this court by petition for writ of review, being case No. 7547, entitled M. D. Andrus, plaintiff v. District Court et als., defendants. By such petition it is made to appear that on the 12th day of May, 1949, respondent in the above entitled action, No. 7572, filed a motion therein for an order delaying the effect of the order dissolving the attachment in such case, made by the court on May 11, 1949; and stating that the motion is made for the purpose of resubmission of the questions involved in the motion for dissolution of attachment. And that on the same day, the District Judge, pursuant to such motion, made an order that the effective date of the order discharging attachment be delayed until further order of the court, with regard to all attached property with the exception of moneys held in banking institutions and the furniture and equipment; and further ordering that the motion for discharge of the attachment and defendant's demurrer to the amended complaint be reargued and resubmitted.

In accordance with the order of the court of May 12, 1949, all property attached was retained under the attachment except that specifically mentioned in such order.

On May 27, 1949, the defendants filed a demurrer to such petition for writ of review. On June 18, 1949, this court issued a restraining order and an order to show cause addressed to the defendants in the proceeding in this court.

Thereafter, the plaintiff in action No. 7572, having appealed to this court from the order of the District Court dissolving the attachment, filed a motion praying that the two cases be consolidated for hearing and determination in this court on the ground that they involved the same subject matter. Such motion was by this court granted.

On September 1, 1949, the respondent in case No. 7572, filed a motion to dismiss the appeal as moot on the grounds, first, that no supersedeas bond was filed to keep the attachment alive, and, second, that the motion of appellant and the order made thereon on May 12, 1949, constituted an election by appellant to seek relief in the lower court relative to the order dissolving the attachment and thereby estopped appellant from prosecuting this appeal.

Respondent's first contention is disposed of in W. G. Jenkins & Co. v. McKenzie, 39 Idaho 291, at pages 292-293, 226 P. 1069, 1070, as follows:

'C.S., § 7159, provides: 'An appeal does not continue in force an attachment unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him; that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless within 20 days after the entry of the order appealed from such appeal be perfected.'

'Respondent moves to dismiss the appeal, upon the ground that the supersedeas not having been filed within the 20 days from the entry of the order dissolving the attachment, the appeal from such order presents only a moot question, as a reversal of the order dissolving the attachment could not revive the same.

'C.S., § 7152, fixes the time for taking an appeal to the Supreme Court, and subdivision 2 of this section reads: '* * * from an order dissolving or refusing to dissolve an attachment * * * within 60 days after the order or interlocutory judgment is made and entered on the minutes of the court, or filed with the clerk.'

'We are of the opinion that this provision of C.S., § 7152, intends to give an absolute right of appeal to this court from an order of the district court dissolving or refusing to dissolve an attachment, irrespective of whether the appellant gives a supersedeas as required by C.S., § 7159, and that the only purpose of this provision relating to the giving of a supersedeas is to provide the...