Howard v. Grimes Pass Placer Mining Co.

• Citation: 120 P. 170,21 Idaho 12
• Parties: I. V. HOWARD, Appellant, v. THE GRIMES PASS PLACER MINING CO. et al., Respondents
• Decision Date: 21 December 1911
• Court: United States State Supreme Court of Idaho

120 P. 170

21 Idaho 12

I. V. HOWARD, Appellant, v. THE GRIMES PASS PLACER MINING CO. et al., Respondents

Supreme Court of Idaho

December 21, 1911

ATTACHMENT-PRO-RATING AMONG CREDITORS.

(Syllabus by the court.)

1. Under the terms of sec. 4304 of the Rev. Codes. which provides for pro-rating the proceeds of attached property among all creditors who "commence and prosecute to final judgment" their actions "within sixty days after the first posting and publication" of the notice of such attachment, no creditor will be entitled to pro-rate in the proceeds of such attached property unless he has procured his judgment within the sixty-day period prescribed by the statute.

2. Held, that under the provisions of sec. 4304 of the Rev Codes, a creditor in order to be entitled to pro-rate in the proceeds of attached property must both commence his action within the sixty-day period and prosecute the same to final judgment within the sixty-day period.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Appeal from an order denying a motion to vacate and set aside a sale on execution. Judgment and order reversed.

Reversed and remanded with directions. Costs awarded in favor of appellant.

Jackson Quarles & Taylor, for Appellant.

In order to have a right under a writ of attachment, the plaintiff must do everything required by the statute. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. 279 29 P. 851; Volmer v. Spencer, 5 Idaho 557, 51 P. 609; Kerns v. McAuley, 8 Idaho 58, 69 P. 539; Murphy, Grant & Co. v. Zaspel, 11 Idaho 145, 81 P. 301.)

It cannot be extended to a case that is not within the terms of the statute. (Sutherland, Stat. Cons., 1st ed., secs. 392, 393, 325, 238.)

The remedy is with the legislature, and not with the courts. The words being plain, nothing can be added by the court. (People v. Owyhee Lumber Co., 1 Idaho 420; Greathouse v. Heed, 1 Idaho 494; Holmberg v. Jones, 7 Idaho 752, 65 P. 563; Shepherd v. Grimmett, 2 Idaho 1123, 3 Idaho 403, 31 P. 793; Wright v. Kelly, 4 Idaho 634, 43 P. 565; Best v. Gohlson, 89 Ill. 465; Pitman v. Flint, 27 Mass. (10 Pick.) 504; Kilpatrick v. Byrne, 25 Miss. (3 Cush.) 571; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152; Encking v. Simmons, 28 Wis. 272; Swift v. Luce, 27 Me. 285; Lane v. Schomp, 20 N.J. Eq. 82; In re Tipple's Estate, 13 N.Y.S. 263; Engelking v. Van Wamel, 26 Tex. 469.)

Perky & Crow, and C. S. Polk, for Respondents.

The inconvenience, hardship, or absurdity which one construction would lead to is often strong evidence in favor of another or different construction involving no objections of that character. (Kendall v. Green, 67 N.H. 557, 42 A. 178; Noyes v. Marston, 70 N.H. 7, 47 A. 592.)

This amendment was enacted in 1895 and re-enacted in 1909. During the period from 1895 to 1909 practically all of the district courts of the state were called upon to construe such amendment, and without exception these courts gave to the same the construction contended for by respondent and judgment creditors, so it may be presumed that the legislature of 1909 knew of the construction so placed on this amendment by the district courts, and in re-enacting said section in 1909 enacted the same with the construction theretofore placed upon it. (United States v. Ninety-nine Diamonds, 139 F. 961, 72 C. C. A. 9, 2 L. R. A., N. S., 185; State v. Barrett, 27 Kan. 213; Pembroke v. Huston 180 Mo. 627, 79 S.W. 470.)

The contention of appellant would entirely nullify the force of the amendment, and it is the duty of the court to so construe an act as to give it force and effect.

An interpretation of a statute that leads to an absurdity ought to be rejected. (Bailey v. Commonwealth, 74 Ky. 688; In re Lambrecht, 137 Mich. 450, 100 N.W. 606.)

When the construction of a statute is doubtful, one long acted upon by the inferior courts will generally be adopted by this court. (Plummer v. Plummer, 37 Miss. 185; Whitcomb v. Rood, 20 Vt. 49.)

AILSHIE, J. Sullivan, J., STEWART, C. J., concurring.

OPINION

AILSHIE, J.

This is a controversy which arises between certain creditors of the Grimes Pass Placer Mining Co. The appellant commenced an action and sued out a writ of attachment and caused the property of the company to be attached. Within sixty days after the posting and publication of the notice of attachment, certain other creditors commenced their actions against the debtor but did not secure judgments within sixty days after the posting and publication of the notice of attachment. The court allowed all creditors to prorate with the attaching creditor in the distribution of the proceeds of the sale of the attached property where they commenced their actions within sixty days after the posting and publication of notice of the attachment, although judgments were not obtained until more than a year thereafter.

The only question here involved is the construction of that portion of sec. 4304 of the Rev. Codes, which reads as follows:

"Any creditor of the defendant, who, within sixty days after the first posting and publication of such notice, shall commence and prosecute to final judgment his action for his claim against the defendant, shall share pro rata with the attaching creditor in the proceeds of defendant's property where there is not sufficient to pay all judgments in full against him."

The respondents contend and the trial court held that the foregoing provision of the statute only requires that the action be commenced "within sixty days after the first posting and publication of such notice," and that if judgment is at any time thereafter procured in an action so commenced, the judgment creditor will be entitled to pro-rate in the proceeds of the attached property. The appellant, on the other hand, contends that under this statute in order to entitle a creditor to pro-rate with the attaching creditor, he must commence his action and prosecute the same to final judgment within sixty days after the first posting and publication of the notice.

A statute written in the plain and ordinary language in common every-day use, dealing with a subject that is neither technical nor scientific, should be construed as the ordinary reading public would read and understand it. In speaking of the rule that should be applied in construing a statute that does not employ technical language, this court in Re Bossner, 18 Idaho 519, 110 P. 502, said: "It is a well-established rule of law that when words have not a technical meaning or application, or when they have not been so used or employed in the statute, they should then be given their ordinary significance as they are popularly understood. We must construe the language here used by the legislature in the light of the popular and common acceptation of the terms there employed." Applying this rule to the foregoing ...