Foore v. Simon Piano Co.

Citation18 Idaho 167,108 P. 1038
PartiesWILLIAM E. FOORE, Appellant, v. SIMON PIANO CO., Respondent
Decision Date02 May 1910
CourtUnited States State Supreme Court of Idaho

ATTACHMENT AGAINST NONRESIDENT - AFFIDAVIT FOR ATTACHMENT AGAINST NONRESIDENT-INDORSEMENT OF NAME OF ATTORNEY ON SUMMONS-JUDGMENT IN REM-POSTING NOTICE OF ATTACHMENT-EXCESSIVE LEVY-EXECUTION SALE-COLLECTION OF DEBT BY FOREIGN CORPORATION.

(Syllabus by the court.)

1. Under the provisions of secs. 4302 and 4303, Rev. Codes, an attachment may be had against a defendant not residing in this state in an action upon a judgment or upon a contract express or implied, and in such case it is not necessary to show by the affidavit for attachment that the plaintiff has no security for the debt.

2. Where a summons or an alias summons is published by order of the court and the name of the attorney for the plaintiff as indorsed on the summons does not appear in the summons as published, the omission is not fatal to the jurisdiction, and does not invalidate the service by publication. The provision of subd. 5, sec. 4140, requiring that "the name of plaintiff's attorney, with his postoffice address or residence, must be indorsed on the summons," is directory and not mandatory.

3. Where constructive service of summons has been had by publication against a nonresident defendant and property within the state has been attached under a writ of attachment regularly issued in conformity with the requirements of the statute, the jurisdiction of the court attaches in rem to the extent of the property attached, and a judgment entered under the constructive service of summons is valid and binding to the extent of the rem.

4. The notice of the issuance of a writ of attachment required to be given by the clerk under the provisions of sec. 4304, Rev Codes, is intended for the protection and benefit of other creditors of the defendant, and a failure to give notice is not available to the defendant in the attachment proceeding and does not enable him to avoid the attachment or subsequent execution sale thereunder.

5. The question as to whether or not an excessive levy has been made under a writ of attachment is one to be presented to the court from which the writ issued and in which the action is pending, and cannot be raised by the defendant after an execution sale and in a collateral or independent action.

6. The question as to whether or not several lots or tracts or parcels of land have been sold together under one bid instead of separately, as required by sec. 4484, Rev. Codes, is a question properly to be presented to the court from which the execution issued and on a motion to set aside the sale for the irregularity. It cannot be raised for the first time on appeal either in the same or a collateral proceeding.

7. The provisions of sec. 10, art. 11, of the state constitution and of sec. 2792, Rev. Codes, prohibiting a foreign corporation "doing business in this state" without first filing its articles of incorporation and designating an agent, do not apply to a foreign corporation doing interstate business or a corporation that sells an article in another state to a citizen of this state and which thereafter finds it necessary to resort to the courts of this state for the collection of the debt.

8. Sec 2792, Rev. Codes, which prohibits a noncomplying foreign corporation from taking title to realty within this state prior to filing its articles, does not apply to a foreign corporation which bids in real estate at execution sale for the collection of a judgment due to the corporation, and which judgment arises out of an interstate transaction.

APPEAL from the District Court of the First Judicial District of the State of Idaho, for the County of Shoshone. Hon. W. W. Woods Judge.

Action by plaintiff to vacate a judgment and set aside a sale made on execution and cancel a sheriff's deed, and to quiet his title to certain lands sold under execution. Judgment for the defendant, and plaintiff appeals. Affirmed.

Judgment affirmed, Costs awarded to respondent.

Gray & Knight, J. L. M'Clear, and William K. Shissler, for Appellant.

This court has repeatedly held that the reservation of title in a vendor creates such a lien in his favor as bars him from resorting to attachment under our statute. (Willman v. Friedman, 3 Idaho 734, 35 P. 37; Barton v. Groseclose, 11 Idaho 227, 81 P. 623; Mark Means etc. Co. v. Mackenzie, 9 Idaho 165, 73 P. 135; Porter v. Brooks, 35 Cal. 199; Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086; Gessner v. Palmater, 89 Cal. 89, 26 P. 789, 13 L. R. A. 187; Ferguson v. Blood, 152 F. 98, 82 C. C. A. 432.)

In the attachment suit the defendant was entitled to the best and every notice provided by law. Failure on the part of respondent to publish the name of its attorney was a substantial defect in the notice. Any defect or failure to perform the strict requirements of the statute is a failure to give the defendant the best notice provided by law, and a judgment which assumes to take his property upon the publication of such notice amounts to the taking of his property without due process of law. (Choate v. Spencer, 13 Mont. 127, 40 Am. St. 415, 32 P. 651, 20 L. R. A. 424; Sharman v. Huot, 20 Mont. 555, 63 Am. St. 645, 52 P. 558; Sanford v. Edwards, 19 Mont. 56, 61 Am. St. 482, 47 P. 212; Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Mills v. Smiley, 9 Idaho 325, 76 P. 783.)

The judgment in the attachment suit is void. The statute was not complied with. By the failure of the respondent and its attorneys to give notice provided by law one of the means by which appellant might have been advised of the pendency of the proceeding against his property was cut off. (Yerkes v. McFadden, 141 N.Y. 136, 36 N.E. 7; Haywood v. McCrory, 33 Ill. 459; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621.)

Statutory provisions with reference to attachment are mandatory and must be strictly complied with. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. 279, 29 P. 851; Kerns v. McAulay, 8 Idaho 568, 69 P. 539; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Shockley v. Bulloch, 18 Ga. 283; Jaffray v. Jennings, 101 Mich. 515, 60 N.W. 52, 25 L. R. A. 645; Marnine v. Murphy, 8 Ind. 272.)

The proceeding by which the jurisdiction is initiated should show affirmatively that the defendant has property within the state. (Cassidy v. Woodward, 77 Iowa 354, 42 N.W. 319; Lutz v. Kelly, 47 Iowa 307; Wilson v. Seligman, 144 U.S. 41, 12 S.Ct. 541, 36 L.Ed. 338.)

"When real property consists of several known lots or parcels, they must be sold separately, or offered for sale in parcels." (Rev. Codes, sec. 4484; Ollis v. Kirkpatrick, 3 Idaho 247, 28 P. 435; Odell v. Cox, 151 Cal. 70, 90 P. 194.)

The several transactions of the respondent within the state of Idaho clearly constitute such a doing of business as takes the transactions out of the class of cases which are held to be interstate commerce, and respondent is therefore bound by the provisions of our statute with reference to the filing of articles of incorporation in this state. (Katz v. Herrick, 12 Idaho 1, 86 P. 873; Tarr v. Western Loan & Savings Co., 15 Idaho 741, 99 P. 1049, 21 L. R. A., N. S., 707; War Eagle Con. Min. Co. v. Dickie, 14 Idaho 534, 94 P. 1034.)

Looking at the substance of this action the court will find that it is a direct attack upon the judgment in the attachment suit. Being a direct attack, under the authority of O'Neill v. Potvin, 13 Idaho 721, 93 P. 20, 257, the want of jurisdiction to render the judgment may be shown even though it does not appear upon the face of the judgment-roll.

Kerns & Ryan, Samuel R. Stern, and Franklin Pfirman, for Respondent.

The action is without question a collateral attack upon the former judgment. (O'Neill v. Potvin, 13 Idaho 725, 93 P. 20, 257; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.)

In case the writ of attachment is brought against the property of a nonresident, it is sufficient to set forth in the affidavit just what is required by the second subdivision of said section 4303, and no more. (Kerns v. McAuley, 8 Idaho 568, 69 P. 539; Ross v. Gold Ridge Min. Co., 14 Idaho 687, 95 P. 821; Vollmer v. Spencer, 5 Idaho 557, 51 P. 609.)

Our statute does not require that an alias summons must be indorsed, except by inference, and if such indorsement is required, such defect in form is not fatal or jurisdictional if the same cannot mislead anyone interested in the litigation. (McKnight v. Grant, 13 Idaho 629, 121 Am. St. 287, 92 P. 989; People v. Wrin, 143 Cal. 11, 76 P. 646; Hill v. Morgan, 9 Idaho 718, 76 P. 323.)

No question was raised by the pleadings as to the execution sale, and the appellant cannot for the first time bring the matter to the attention of this court. "The proper remedy to set aside a judicial sale which has been wrongfully made, prior to the making of the sheriff's deed, is by motion in the principal action." (Wooddy v. Jameson, 5 Idaho 466, 50 P. 1008.)

In this case there is no allegation whatever in relation to the manner of sale or the value of the property sold. (Booker v. Bass, 127 Ga. 133, 56 S.E. 283; People v. Owyhee Lumber Co., 1 Idaho 420; Leppel v. Kus, 38 Colo. 292, 88 P. 448.)

The respondent was not obliged to comply with the requirements of the state of Idaho relative to foreign corporations, in order that it might sell an Apollo piano player and a lot of music within said state; it had the right to engage in interstate commerce. (Toledo Computing Scale Co. v. Young, 16 Idaho 187, 101 P. 257; Bell City Mfg. Co. v. Frizzell, 11 Idaho 1, 81 P. 58; In re Kinyon, 9 Idaho 642, 75 P. 268; In re Abel, 10 Idaho 288, 77 P. 621.)

If the defendant had the right to engage in interstate commerce it necessarily had the right to enforce the collection of its debts. If it became...

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