Farmers State Bank of Star v. Gray

Decision Date20 March 1922
Citation210 P. 1006,36 Idaho 49
PartiesFARMERS STATE BANK OF STAR, Respondent, v. EUGENE F. GRAY and LURA E. GRAY, Appellants
CourtIdaho Supreme Court

On Rehearing, July 1, 1922.

On Second Rehearing, Dec. 4, 1922.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Motion by defendants to quash an attachment. From order denying motion, defendants appeal. Affirmed.

Order of the trial court denying the motion to quash the writ of attachment affirmed. Costs to respondent.

Eldridge & Morgan, for Appellants.

The affidavit for attachment must state facts sufficient to conform to all the statutory requirements. If it fails to do so, the court is without jurisdiction to issue the writ. (Kerns v. McAulay, 8 Idaho 558, 69 P. 539; Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821; Knutsen v. Phillips, 16 Idaho 267, 101 P. 596; 6 C J. 146; C. S. 6780; Heaton v. Panhandle Smelting Co Ltd., 32 Idaho 146, 179 P. 510.)

Since the affidavit is false, in an important particular, the court was without jurisdiction to issue the writ. (Murphy v Montandon, 3 Idaho 325, 35 Am. St. 279, 29 P. 851; Willman v. Friedman, 3 Idaho 734, 35 P. 37; Vollmer v. Spencer, 5 Idaho 557, 51 P. 609.)

Security at other times is not negatived. For its failure to negative such security or, if it existed, to state that it had without any act of the plaintiff, or the person to whom the security was given, become valueless, the amended affidavit is insufficient to support the writ. (Union Bank & Trust Co. v. Himmelbauer, 56 Mont. 82, 181 P. 332; Continental Oil Co. v. Jamieson, 53 Mont. 466, 164 P. 727.)

Martin & Martin, for Respondent.

There is no requirement in C. S., sec. 6780, that, when an affidavit for attachment states that there has been security for an indebtedness and that the same "has without any act of the plaintiff, or the person to whom the security was given, become valueless," it must also set up that there was no other security for such indebtedness.

"It is not necessary to allege any other facts than those specified in the statute." (Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821; Kerns v. McAuley, 8 Idaho 558, 69 P. 539; Knutsen v. Phillips, 16 Idaho 267, 101 P. 596; Barbieri v. Ramelli, 84 Cal. 174, 24 P. 113; Union Bank & Trust Co. v. Himmelbauer, 56 Mont. 82, 181 P. 332.)

When the property mortgaged had been sold in accordance with the conditions of the mortgage and the proceeds applied upon the debt it became valueless as security by act or authority of the appellant and the respondent was not debarred from an attachment in this action to recover the amount remaining due and unpaid. (Tappin v. McCabe, 27 Idaho 402, 149 P. 460; Williams v. Hahn, 113 Cal. 475, 45 P. 815.)

As all the security for said note sued upon had prior to the bringing of this action been applied upon the original indebtedness by agreement of the parties, said security has become valueless, as security for the balance of said note, and thus respondent's affidavit for attachment is true. (Wooddy v. Jamieson, 4 Idaho 448, 40 P. 61.)

DUNN, J. McCarthy, Lee, JJ., and Rice, C. J., concurring. Budge and Lee, JJ., dissent.

OPINION

DUNN, J.

This is an appeal from an order of the district court of Ada county denying a motion to quash an attachment. The motion was made on the grounds: First, that the affidavit for attachment was in certain particulars untrue; second, that it was insufficient in that it appeared therefrom that the payment of the promissory note upon which the action was brought was originally secured by a mortgage on personal property, and that a part of said property had been sold by agreement between the plaintiff and defendants; third, that the affidavit for attachment was insufficient in that it did not appear therefrom that the indebtedness from the defendants to the plaintiff had not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally secured, that such security had, without any act of the plaintiff, or the person to whom the security was given, become valueless.

The claim of appellants that the affidavit for attachment is untrue is based in part upon the fact that by agreement between the respondent and appellants a portion of this property was put up and sold at public sale, and that in this way it was the act of the respondent that rendered valueless the security held by respondent on such property as was sold. This claim is also based in part upon the contention of appellants that $ 400 of the amount now owing from appellants to respondent is secured by a title-retaining note held by the respondent.

C. S., sec. 6780, provides that the clerk of the district court must issue a writ of attachment upon receiving an affidavit by or on behalf of the plaintiff which, in addition to other matters not involved in this controversy, specifies that the payment of the indebtedness sued on "has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally secured, that such security has, without any act of the plaintiff, or the person to whom the security is given, become valueless." In the case of Knutsen v. Phillips, 16 Idaho 267, 101 P. 596, the affidavit filed by the plaintiff stated that the payment of the indebtedness sued on had not been secured "by any mortgage or lien upon real or personal property," omitting the words "or any pledge of personal property," and this court held such affidavit insufficient, reversing the decision of the trial court. It thus appears that this court has held, in effect, that if there is no security the plaintiff seeking a writ of attachment must by the affidavit negative every form of security mentioned in this statute. In this case the affidavit admits that the indebtedness sued on had been secured by a chattel mortgage but does not negative any other of the forms of security mentioned in said statute. Appellants point out the fact that even though the security by chattel mortgage is admitted, this is not a denial that appellant has held a mortgage or lien upon real property or a pledge of personal property, and this is true. If it is necessary, in case there is no security, that the affidavit should set out specifically that the indebtedness sued on has not been secured "by any mortgage or lien upon real or personal property or any pledge of personal property," or words to that effect, no reason appears why the affidavit should not be equally specific as to the other forms of security mentioned in the statute when it contains an admission that the appellant has had one kind of security mentioned therein. In such case it should clearly appear from the affidavit that the plaintiff had no other security than that admitted in the affidavit. The original affidavit was fatally defective in this respect.

After the motion to quash was filed and served an amended affidavit for attachment was filed by which it was attempted to meet the objections raised by appellants. The amended affidavit recites "that the payment of said note at the time of its execution was secured by a chattel mortgage upon certain personal property, dated October 23, 1920,...

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    • United States
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    ... ... class is required to state facts required for the other ... class, so that in the ... (Farmers' State Bank v. Gray, 36 Idaho 49, 210 ... P. 1006; Knutsen ... (C. S., sec. 6780; ... Farmers' State Bank of Star v. Gray, 36 Idaho ... 49, 210 P. 1006; Knutsen v ... ...
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    ...or on motion the writ will be discharged. To the same effect see Vollmer v. Spencer, 5 Idaho 557, 51 P. 609. In Farmers State Bank of Star v. Gray, 36 Idaho 49, 210 P. 1006, 1009, this Court held in effect that the affidavit to secure the issuance of a writ of attachment must be sufficient ......
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