Dickinson v. First Nat. Bank of Cody

• Decision Date: 28 December 1933
• Docket Number: No. 6192.,6192.
• Citation: 64 N.D. 273,252 N.W. 54
• Parties: DICKINSON v. FIRST NAT. BANK OF CODY, WYO.
• Court: North Dakota Supreme Court

64 N.D. 273

252 N.W. 54

DICKINSON

v.FIRST NAT. BANK OF CODY, WYO.

No. 6192.

Supreme Court of North Dakota.

Dec. 28, 1933.

Syllabus by the Court.

1. A proceeding by attachment to establish a statutory lien to aid in the collection of a debt is an extraordinary proceeding in derogation of the common law, and there must be a strict compliance with the statute or the proceedings are void and may be attacked and set aside in a collateral proceeding.

2. Section 7546, Compiled Laws 1913, requires the sheriff to make a true and complete inventory of all the property seized under and by virtue of a warrant of attachment and further provides that the sheriff shall within twenty days after making such seizure file such inventory and a return of his doings upon such attachment with the clerk of the district court who issued the warrant, and a failure of the sheriff to file such inventory and return within twenty days after making such seizure renders the whole proceeding void.

Appeal from District Court, Williams County; John C. Lowe, Judge.

Action by H. E. Dickinson against the First National Bank of Cody, Wyo., a banking corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

CHRISTIANSON, J., dissenting.

Fisk, Craven & Taylor, of Williston, for appellant.

Burdick & Burk, of Williston, for respondent.

BURKE, Judge.

This is an action to determine adverse claims to the north half of the northeast quarter and the east half of the northwest quarter, also described as lots 1, 2, and 3 and southeast quarter of the northwest quarter of section 2, in township 153, range 102.

The complaint is in the statutory form, and the defendant, in its answer, claims title to said land under and by virtue of a sheriff's deed, executed by the sheriff of Williams county, on a sale of said premises on special execution in an attachment proceeding. According to the facts, as stipulated, on June 1, 1931, an attachment was issued in an action in which the defendant, the First National Bank of Cody, Wyo., was plaintiff and B. G. Edgerton, the record title owner of said land, was defendant, and by authority of said warrant of attachment the sheriff of Williams county levied upon said described land. On the 2d day of June, 1931, the said sheriff made a true and complete inventory of the property attached, but no inventory was filed in the office of the clerk of the district court until August 17, 1931. Thereafter judgment by default was rendered in favor of the said bank and against said B. G. Edgerton in the sum of $3,896.56, upon which judgment a special execution was issued, and said land was sold to the said bank for the sum of $936.57. The sheriff's report of the sale was duly executed, and, upon the filing of the same, the sale was confirmed by an order of the district court. On June 17, 1926, for value, the said Edgerton executed and delivered to the plaintiff, H. E. Dickinson, a deed of conveyance of the said land, and on the 29th day of July, 1932, the plaintiff brought this action.

It does not clearly appear in the stipulated statement of facts that the attachment action was against a nonresident defendant, but it does appear in appellant's statement of facts that the judgment in the attachment proceeding was by default, and there are other statements from which we conclude that the attachment action was against a nonresident defendant. The trial judge made findings of fact and conclusions of law favorable to the plaintiff, and the defendant appeals.

The levy of the attachment was made on the 1st of June, 1931, and an inventory of the property levied upon was made on the 2d day of June thereafter, but this inventory was not filed with the clerk of the district court, who issued the warrant, within twenty days after seizure of the property, and the sole question is, Was the failure to file the inventory, as required by law, fatal?

Section 7546, Compiled Laws 1913 reads as follows: “Immediately upon making such seizure the sheriff shall make a true and complete inventory of all the property so seized and the books, vouchers and papers taken into his custody, stating therein the estimated value of the several articles and kinds of personal property, enumerating such of them as are perishable, and giving a description of the real property so attached, which inventory must be signed by the sheriff. Any subsequent execution of the warrant of attachment upon other property of the debtor must be made, and an inventory thereof made in like manner. The sheriff shall within twenty days after making such seizure file such inventory and a return of his doings upon such attachment with the clerk of the district court who issued the warrant.”

The precise question in an attachment proceeding has never been before this court, but it was before the Supreme Court of South Dakota in the case of Interstate Surety Company v. Bangasser, 50 S. D. 618, 211 N. W. 599, 601, and the history of attachment legislation in the territory as it was originally adopted in 1867-68, Laws of Dakota, pp. 5259, together with the subsequent amendments, are reviewed and quoted at length.

Section 203, Code of Civil Procedure, Revised Code of 1877, required the making of an inventory of the property seized, but did not require the filing of such inventory.

In 1887, the Legislature enacted chapter 24 of the Laws of 1887, entitled “An Act To Amend Section 203 of the Code of Civil Procedure Relating to the Fling of Papers in Proceedings by Attachment.” Section 1. “ When Papers shall be Filed by Sheriff. That section two hundred and three of chapter eleven of the Code of Civil Procedure be and the same is hereby amended by adding thereto the following words: ‘And such officer shall within twenty days after making such seizure, file all of said papers, including said inventory and return, with the clerk of the district court who issued the warrant.”’

This amendment was construed by the South Dakota court in the case of Carson v. Fuller, 11 S. D. 502, 78 N. W. 960, 74 Am. St. Rep. 823, cited and approved on this point in Guernsey v. Tuthill, 12 S. D. 584, 82 N. W. 190, and holding that the amendment in effect establishes a return date for the process and was mandatory. The South Dakota court in Interstate Surety Co. v. Bangasser, supra, states that “section 2442, R. C. 1919 [S. D.], was brought into our law by the commissioners who prepared the Revised Code of 1919, being taken from North Dakota (section 7547, N. D. Comp. Laws 1913).” This section relates to the levy, and first appears in our Code as section 5362, Revised Code of 1895. The South Dakota court continues as follows: “In view of the history of these various provisions of our statute and the reenactment of all thereof in the Code of 1919 subsequent to the decision in Carson v. Fuller, supra, we are of the opinion that the 20-day period for filing the inventory and return prescribed by section 2437 is mandatory and is a restriction upon the unlimited general provision for filing the return set out in section 2450, R. C. 1919, and that while the lien of the attachment is effectual from the time a proper levy is made, as provided by section 2442, R. C. 1919, yet such lien is subject automatically to be lost and divested ab initio, if within 20 days after the seizure the sheriff fails to file his inventory and warrant together with his return thereon, as prescribed by section 2437.” Section 2437, Compiled Laws S. D. 1929.

Section 217, Code of Civil Procedure 1877, as originally adopted, does require the officer making the levy to make a return as follows: “§ 217. Return by Officer. When the warrant shall be fully executed or discharged, the sheriff must return the same with his proceedings thereon, to the court in which the action was brought.” This section has been continued in our statute without change, and is section 7566, Comp. Laws 1913. Under this section there is no time fixed for the return, in which case, the universal rule would be that the return would have to be made within a reasonable time.

The amendment of 1887 (Laws 1887, c. 24) requiring the filing of an inventory and return within twenty days is not in conflict with section 7566, Comp. Laws 1913. Section 7566 requires the officer to make a return of the warrant with his proceeding thereon when it is fully executed. The amendment of 1887 provides that the sheriff shall, within twenty days after making such seizure, file such inventory and a return of his doings upon such attachment with the clerk of district court who issued the warrant. In the course of an action in attachment, the sheriff may make several seizures of the property at different times, and every time he makes a seizure he must, “within twenty days after making such seizure, file all of said papers, including said inventory and return.” Under section 7566, when the warrant is fully executed and discharged, he makes his final return.

The commission, authorized by law to revise and codify the laws of North Dakota, in 1895 reported to the Legislative Assembly seven bills providing for seven different Codes embracing the entire statutory law of the state. The title of one of the bills is, “This act shall be known as the Code of Civil Procedure.” Article 4 of this act relates to attachment. Section 5352 (Rev. Codes 1895) names and defines seven conditions, any one of which is cause for an attachment and, of course, is mandatory and jurisdictional. Section 5353 names certain conditions under which an attachment may issue in an action on a claim not due. The conditions must, as a matter of course, exist, or the action cannot be maintained, and hence is jurisdictional. Section 5355 provides that the warrant shall be issued by the clerk of the court in which the action was commenced, and shall be attested in the name of the presiding judge and sealed with the seal of the court and is a mandatory provision. Section 5356 provides that the warrant shall issue upon a verified...