Glidden v. Whittier
| Decision Date | 01 June 1891 |
| Citation | 46 F. 437 |
| Parties | GLIDDEN v. WHITTIER et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Syllabus by the Court
Motion to discharge, under statute of Idaho, may be for the irregularity of its issue, even after the attached property has been redelivered to the defendant upon his giving the counter-undertaking provided for by statute.
Affidavit is sufficient which alleges that plaintiff has no security by mortgage or lien upon real or personal property, although it omits the other statutory clause, 'or pledge of personal property.'
John R McBride and Albert Allen, for plaintiff.
W. B Heyburn, for defendants.
This action was commenced in the state court for the county of Shoshone on the 31st day of July, 1891, and on the same day the plaintiff caused certain ores, the property of the defendant, to be attached. Two days thereafter the defendants made their appearance in the cause, and moved for the release and redelivery to them of the attached property, upon the execution of a proper undertaking, in pursuance of section 4320, Rev. St. Idaho, and thereafter, on the 4th day of August, upon the hearing of such motion, the undertaking having been given, the judge of such court ordered the redelivery to defendant of all such property. On the 9th day of August the defendant moved said state court 'to discharge the writ of attachment, and exonerate the makers of the undertaking heretofore given, and to release from the operation of attachment the property attached,' on account of the irregularity in the affidavit upon which the attachment was originally issued. This motion does not appear to have been determined in such state court, and is now here renewed.
The first question involved is whether the defendants, by the execution of the bond for the release to them of the attached property, waived their right to move the discharge of the attachment. It will be found upon an examination of the limited decisions on this subject that they are contradictory, chiefly, perhaps, from a difference in the statutes upon which they are based. It is provided by section 4319, Id., 'that upon the execution of the undertaking mentioned in next section, an order may be made, releasing from the operation of the attachment all the property attached,' and for its delivery to the defendant. It is evidently the design of this statute that the attached property shall pass into the absolute possession and control of the defendant on his execution of the proper bond. The plaintiff's claim or lien upon the property by virtue of his attachment is absolutely annulled, and it is entirely released from all claim of the law, and, in lieu of his attachment lien, plaintiff must rely upon the undertaking given by defendant. This undertaking would seem to be a new and independent contract, into which the defendant and his sureties enter, regardless of plaintiff's desire in the premises,...
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Knutsen v. Phillips
...provides that it must contain, the affidavit is not sufficient. In opposition to this view, counsel for respondent has cited Glidden v. Whittier, 46 F. 437. In passing upon identical question here under consideration, the court said: "It is evident that the design of the statute is to give ......
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Truax v. Title Guar. & Sur. Co.
...as a waiver of all defects in, and objections to, the original attachment proceedings which the defendant could have made.' Glidden v. Whittier (C. C.) 46 F. 437. above case was one originating in Idaho, in the federal district court, and involving the same statutes. See, also, Rosenthal v.......
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