Gatward v. Wheeler

• Decision Date: 25 May 1904
• Citation: 77 P. 23,10 Idaho 66
• Parties: GATWARD v. WHEELER
• Court: Idaho Supreme Court

77 P. 23

10 Idaho 66

GATWARD v. WHEELER

Supreme Court of Idaho

May 25, 1904

ATTACHMENT-WHAT AFFIDAVIT SHOULD CONTAIN.

1. An affidavit for an attachment must contain an allegation in unequivocal language that the debt sued on is due before the writ of attachment should issue.

(Syllabus by the court.)

APPEAL from the District Court of Shoshone County, from an order sustaining a motion to dissolve and discharge an attachment. Judgment affirmed. Honorable Ralph T. Morgan, District Judge.

Order affirmed, with costs to respondents.

W. T Stole, for Appellant.

If the term "indebted" has no legal signification there might be some room for argument. The supreme court of Wisconsin in the case of Towbridge v. Sickler, 42 Wis. 420, has adjudicated the meaning of the word "indebted." The court says: "It has been held in Louisiana that the words 'really indebted' convey the idea of a debt actually due and payable; not debitum in praesenti, solvendum in futuro. No weight seems to have been given to the adverb "really." (Parmele v. Johnston 15 La. 429; Wilcox v. Jamieson, 20 Colo. 158, 36 P 902; 1 Estee's Pleading and Practice, sec. 605; Bliss on Code Pleading, sec. 152, 210; Farron v. Sherwood, 17 N.Y. 227; Mayes v. Goldsmith, 58 Ind. 94.) The second ground for discharging the attachment was that the affidavit therefor was insufficient, in that the indebtedness therein mentioned was not stated to be due at the time of the execution or filing of the affidavit, or at the beginning of the action, or at all. Here we have the same question presented to the court of the meaning of the word "indebtedness," except that the affidavit and its contents depend entirely upon the statute and not upon the common law. If, therefore, the statute is complied with, that is all that can be required. It must be observed that the remedy of attachment is extraordinary, resting wholly upon authority from the statute. It is a creature of legislative enactment, and all steps prescribed by the statute must be strictly followed in substance. (Drake on Attachment, par 97; Cal. Code Civ. Proc., sec. 538; Weaver v. Hayward, 41 Cal. 117; Trowbridge v. Sickler, 42 Wis. 417; Quarles v. Robinson, 2 Pinn. 97 (1 Chand. 29); Lenox v. Howland, 3 Caines, 323.) It is true that in many states the authorities hold that the words "is due" of "is now due" are necessary to the affidavit, but an examination of those decisions will disclose that the statute of those states requires a recital in words that the debt "is due." In Michigan, for instance, the authorities hold an affidavit insufficient and the court without jurisdiction, unless it is stated that the debt is due; this is because the statute in words requires it. (Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669; Cross v. McMahon, 17 Mich. 511, 97 Am. Dec. 203; Wells v. Parker, 26 Mich. 102.) These authorities do not conflict nor confuse the Idaho statute. On the other hand, it clears our position and renders the affidavit sufficient. The simple and elementary principle contended for here is that it is never, under any circumstances, necessary to go beyond what the statute requires; but that it is necessary to fulfill the terms of the statute. The supreme court of Idaho is directly in accord with this principle of law, it being announced in the case of Kerns v. McAulay, 8 Idaho 558, 69 P. 539.

A. A. Crane and C. W. Beale, for Respondents.

The declaration in the complaint that the defendants were indebted to the plaintiffs, under the decision of this court, is not a sufficient declaration upon which to found a judgment on account for goods, wares and merchandise. In the case of Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 P. 889, this court held that the complaint must contain a declaration that the account or debt sued upon was due at the time of the commencement of the action. The complaint in said action did not contain any positive declaration that the debt was due; to which a demurrer was filed charging the same to be insufficient for that reason, which demurrer was by the lower court overruled, and which ruling of the lower court this court held to be error. An attempt was made to join the wife of the defendant in the action brought upon what the complaint alleges to be a community debt, and that in the face of the decision of Jaeckel v. Pease, 6 Idaho 131, 53 P. 399, which holds that a married woman not only cannot be sued for the debt of the community, but cannot even make a contract binding herself to pay the community debt. The affidavit for attachment does not allege that the indebtedness sued upon was due. (Kerns v. McAulay, 8 Idaho 558, 69 P. 539.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

This case is here for review on two appeals from the district court of Shoshone county. December 14, 1903, plaintiffs filed their complaint in the district court praying for a judgment against defendants for the sum of $ 3,129.26; on the same day the clerk of the district court issued an attachment, and on the twenty-ninth day of December the sheriff returned the writ with his service showing he had levied on certain real estate in Shoshone county alleged to be the property of defendants.

At the time of filing the complaint the plaintiffs caused to be filed an affidavit for attachment, to wit: "That the defendants are indebted to the plaintiffs in the sum of $ 3,129.26 over and above all legal setoffs or counterclaims upon an account for the reasonable value of goods, wares and merchandise sold to defendants by the plaintiffs between January 1, 1903, and December 10, 1903 and that the payment of the same has not been secured by any mortgage or lien upon real estate or personal property or any pledge of personal property." On the same day the complaint and affidavit were filed and an undertaking in the sum of $ 3,129.26 was also filed with the National Surety Company, a corporation, of New York, as surety. The obligation in the undertaking is as follows: "The condition of the foregoing obligation is such that if the defendants above named recover judgment in said action, or if the attachment therein be wrongfully issued, the plaintiffs will pay all costs that may be awarded to defendants and all damages which they may sustain by reason of the attachment, not exceeding the sum specified in this undertaking."

On the fourth day of January, 1904, counsel for defendants moved to set aside, dismiss and quash the levy and service of the writ of attachment in said action, and to discharge the said writ of attachment heretofore issued herein on the ground that the said writ of attachment was improperly and irregularly issued in said action for the following reasons, to wit:

"1. That the complaint in said action does not state facts sufficient to constitute a cause of action against said defendants or either of them.

"2. That the affidavit for attachment filed in said action was defective and insufficient in this: that it does not state that the indebtedness mentioned in said affidavit was due at the time of the execution or filing of said affidavit or at the beginning of said action, or due at all.

"3. That the undertaking on attachment filed in said action was defective, insufficient and void and not such an undertaking as required by the laws of the state of Idaho."

The provisions of section 4304 of the Code of Civil Procedure of the state of Idaho as amended by the act of the legislature of said state, approved on the fourteenth day of February 1899, and the act of February 23, 1899, regulating surety companies found on pages 337, 338, 339 and 340 of the General Laws of the state of Idaho . . . . and that said undertaking does not show and was not accompanied with any...