Hubbard v. Morse, 8159

• Citation: 76 Idaho 494,285 P.2d 483
• Decision Date: 22 June 1955
• Docket Number: No. 8159,8159
• Parties: Frank HUBBARD and James W. DAVIS, a co-partnership, d/b/a Hubbard & Davis, Plaintiffs-Respondents, v. Clyde MORSE, Justice of the Peace, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 483

285 P.2d 483

76 Idaho 494

Frank HUBBARD and James W. DAVIS, a co-partnership, d/b/a Hubbard & Davis, Plaintiffs-Respondents, v. Clyde MORSE, Justice of the Peace, Defendant-Appellant.

No. 8159.

Supreme Court of Idaho.

June 22, 1955.

McNaughton & Sanderson, Coeur d'Alene, Stephen Bistline, Sandpoint, for appellant.

James E. Hunt, Raymond T. Greene, Jr. Sandpoint, for respondents.

PORTER, Justice.

Kershaw's Inc., a California Corporation, obtained a judgment against North Idaho Equipment, Inc., an Idaho Corporation, in the justice court of defendant, Clyde Morse, Justice of the Peace. Such judgment being unsatisfied, Kershaw's, Inc., in proceedings supplementary to execution, moved the justice court for an order directing respondents herein to appear before such court on the 21st day of January, 1954, to then and there answer concerning any money or property which they or either of them may have which is the property of the judgment debtor, the North Idaho Equipment, Inc.

The motion was based upon the affidavit of the attorney for Kershaw's Inc., to the effect that respondents had taken into their possession and claimed and asserted ownership of, accounts receivable of the North Idaho Equipment, Inc.; that the exact amount of such accounts receivable was unknown to the affiant; and that respondents had in their possession the books and records of the North Idaho Equipment, Inc. The Justice of the Peace issued the order as prayed for, and the same was served upon respondents. An answer was filed by respondents claiming ownership of any and all accounts receivable or property in their possession and denying that the North Idaho Equipment, Inc., had any interest whatsoever therein.

A hearing was held on January 21 in which both Kershaw's Inc., and respondents participated. It seems to be agreed that the court announced that the hearing was at an end, but the Justice of the Peace did not then or thereafter make any formal order determining the merits of the matter. On January 26, the judgment creditor moved the justice court for an order for further proceedings in the matter and noticed such motion for hearing on March 3. On such day, the motion was duly presented to the court. At the conclusion of the hearing the justice court entered its order, the pertinent part of which is as follows:

'Therefore it is ordered that this matter shall proceed, and the taking of testimony shall resume on Wednesday, the 10th day of March, 1954, at 10:00 o'clock A.M., in this above-entitled Court.

'And it is further ORDERED that the defendants in supplementary proceedings, Frank Hubbard, and James Davis, appear at that time, and that they bring to Court all books and records, of the North Idaho Equipment Company, Inc., which have come into the possession of said defendants, and that they produce such evidence as they may have at that time which will substantiate their bare claim that they own all of the assets of the defendant corporation which have come into their possession or control, in order that this court may properly determine whether or not to forbid the disposition of those assets, and whether or not this Court will enter an order authorizing the plaintiff to bring an action against said defendants for the recovery of said property.'

On March 8, 1954, the respondents commenced this action in the district court seeking a writ of prohibition commanding appellant to desist and refrain from proceeding further in said proceedings supplementary to execution. In their petition, respondents alleged that they claimed ownership of the accounts and property in question and denied possession of any properties belonging to the North Idaho Equipment, Inc.; that they are being harassed and put to unnecessary expense by the order of March 3; and that the order made by the Justice of the Peace on March 3 was without and in excess of his jurisdiction.

An alternative writ of prohibition was granted. Thereafter, trial was had and the trial court made and filed 'Order and Judgment Granting Absolute Writ of Prohibition.' The writ was duly issued prohibiting appellant from taking any further action in the proceedings supplementary to execution except to make an order authorizing the bringing of an action against respondents and in the meantime, restraining them from disposing of any of the property in question. From such judgment appellant has appealed to this court.

A writ of prohibition may be granted where the proceedings of a tribunal are without or in excess of its jurisdiction. Section 7-401, I.C. There is no contention herein that the Justice of the Peace did not have jurisdiction of the parties and of the subject matter. The contention by respondents is that he exceeded his jurisdiction in making the order of March 3 providing for a further hearing in the cause. It appears to be the theory of respondents and the theory adopted by the trial court that when respondents claimed ownership of the property in question, then the Justice of the Peace was without authority to proceed further with the examination of respondents.

Section 16-1105, I.C., provides that the provisions for proceedings supplementary to execution in the district court are applicable to justices' courts. Sections 11-504, 11-505, 11-506 and 11-507, I.C., are the pertinent statutes in this case and read as follows:

'11-504. Examination of defendant's debtors.--After the issuing or return of an execution against property of the judgment debtor or of any one of several debtors in the same judgment, or upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has money or property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same.'

'11-505. Witnesses required to appear.--Witnesses may be required to appear and testify before the judge or referee, upon any proceeding under this chapter in the same manner as upon the trial of an issue.'

'11-506. Application of judgment debtor's property to satisfaction of execution.--The judge or referee may order any money or property of a judgment debtor not exempt from execution, in the hands of such debtor or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment.'

'11-507. Proceedings against defendant's debtor.--If it appears that a person or corporation, alleged to have money or property of the judgment debtor, or to be indebted to him, claims an interest in the money or property adverse to him, or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of...