F. Mayer Boot & Shoe Co. v. Ferguson
| Decision Date | 24 March 1910 |
| Citation | 126 N.W. 110,19 N.D. 496 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Goss, Special J.
Action by the F. Mayer Boot & Shoe Company against R. J. Ferguson. Judgment for plaintiff, and defendant appeals.
Affirmed.
M. A Hildreth, for Appellant.
A. G Lacy, for Respondent.
This is an appeal from a judgment of the district court in plaintiff's favor. The complaint alleges that the plaintiff is a foreign corporation; that on the 6th day of June, 1906, and the 19th day of July, 1906, it sold and delivered to the defendant certain goods, wares, and merchandise which were of the agreed value of $ 621.60; that no payment has been made except the sum of $ 50, paid October 25, 1907. Then follows a description of the goods sold. The fourth paragraph of the complaint alleges that this action is brought to recover the purchase price for personal property sold and delivered by plaintiff to defendant, and that the defendant has on hand certain property, the description of which follows, which property was sold by plaintiff to defendant, and that the defendant claims the same exempt from the operation of the acts of Congress relating to bankruptcy and by virtue of the laws of North Dakota. The prayer is for judgment for the sum of $ 571.60 and interest thereon from the 19th day of July, 1906. The defendant answered admitting the incorporation but denying each allegation except as expressly admitted, qualified, or explained, and pleaded that the property described in the fourth paragraph was exempt under the laws of the state of North Dakota, and, further that prior to the commencement of the action the defendant had been duly adjudged a bankrupt in the federal court for the Southeastern district of North Dakota pursuant to the federal bankruptcy law, and that he had been duly discharged from all his debts and obligations, including the debt and obligation set forth in the complaint. No motions were submitted with reference to the complaint, and the parties went to trial on the 13th day of February, 1908, whereupon evidence was submitted showing the contract price of the goods, which consisted of shoes; that an attachment had been levied thereon in accordance with paragraph 8 of section 6938, Rev. Codes 1905, which provides that, in an action to recover the purchase price for personal property sold to the defendant, an attachment may be issued and levied upon such property, and section 7126, Rev. Codes 1905, which provides that no property shall be exempt from execution or attachment in an action brought for its purchase price or any part thereof. The plaintiff submitted the evidence of several witnesses to show the identity of the goods attached and the purchase price thereof. The defendant submitted no evidence. It was also shown that in the bankruptcy proceedings the goods in question had been set aside as exempt to the defendant prior to the attachment. On both parties resting, counsel for plaintiff submitted a motion to instruct the jury to return a verdict in favor of the plaintiff and against the defendant for the sum of $ 571.60, and interest at the rate of 7 per cent. per annum from the 19th day of July, 1906, and for a special finding that the property described in the complaint and in the sheriff's notice of levy was the identical property purchased by defendant from plaintiff. The motion was based upon the ground that the undisputed evidence showed that the defendant purchased from the plaintiff the goods mentioned, and that they amounted to $ 621.60; and that no part of the same had been paid except the sum of $ 50, and that the testimony regarding the identity of the property was uncontradicted. The court granted the motion, to which the defendant excepted. After it was granted, the defendant objected to any special finding being made by the direction of the court, because the issue involved the credibility of witnesses who had testified as to the identity of the property, and that that was a question of fact for the jury to pass upon. After the verdict was returned, counsel for defendant objected to its form and to the special finding on the ground that the court had no power to direct a special finding of the character described in the verdict, and that such finding was no part of the verdict. These objections were overruled and exceptions allowed.
The facts disclosed with reference to the commencement of this action and the bankruptcy proceedings are as follows: Defendant filed his petition to be adjudged a bankrupt on the 29th day of December, 1906, and was adjudicated a bankrupt on the 2d day of January, 1907. This action was commenced on the 24th of April, 1907. Defendant's petition for his discharge in bankruptcy was filed on the 25th day of April, 1907, and he was discharged on the 25th day of May, 1907. It will thus be seen that the relative dates regarding the commencement of this action and the different acts in the bankruptcy proceedings were identical with the respective dates in the case of Powers Dry Goods Co. v. Nelson, 10 N.D. 580, 88 N.W. 703, 58 L.R.A. 770. The record contains a notice of motion for security for costs on the ground that the plaintiff is a foreign corporation, which motion bears date March 23, 1908; but no service is shown in the abstract, which shows the entry of an order denying the application. The denial of this application is assigned as error. In view of the decision of this court and that of the trial court, and without considering the question of waiver which was argued, we fail to see any prejudicial error to the defendant by the denial of such application, and, in the absence of service of notice of the application, it was not error to deny it.
A motion for a new trial was submitted and denied on the 30th day of June, 1908, and on the 12th day of September, 1908 judgment was entered in favor of the plaintiff and respondent, wherein it was adjudged that the property levied on in the attachment proceedings was the identical property described in the complaint and sold by plaintiff to defendant. It was also adjudged and determined that the plaintiff have and recover of the defendant $ 627 damages and $ 22.87 costs to be satisfied out of the property attached and then in the custody of the sheriff of Cass county, so far as said property will satisfy the amount, and not otherwise, and personal judgment for the costs. No point is made on the fact that personal judgment was entered for the costs. With reference to the legality of such a judgment, the right of the plaintiff to an attachment for purchase money and as to the property levied on for the purchase price not being exempt under our statute and the procedure followed in this case generally, Powers Dry Goods Co. v. Nelson, supra, is authority. The lien of attachment on personal property of a bankrupt set aside as exempt in the bankruptcy proceedings is not discharged by a discharge in bankruptcy, and such lien may be enforced...
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