Johnson v. Emery

• Decision Date: 05 September 1906
• Docket Number: 1725
• Citation: 86 P. 869,31 Utah 126
• Court: Utah Supreme Court
• Parties: JOHNSON et al. v. EMERY et al

86 P. 869

31 Utah 126

JOHNSON et al. v. EMERY et al

No. 1725

Supreme Court of Utah

September 5, 1906

APPEAL from District Court, Salt Lake County; C. W. Morse, Judge.

Action by W. E. Johnson and another against C. Frank Emery and others. From a judgment in favor of defendants, plaintiff Johnson appeals.

AFFIRMED.

Henderson Pierce, Critchlow & Barrette for appellants.

APPELLANTS' POINTS.

Proceedings in attachment, being a statutory proceeding and in derogation of the common law, are strictly construed, and no intendment whatever will be indulged in its favor, but the statute must be strictly complied with. (1 Shinn on Attachment, sec. 8.)

A statement in an affidavit for attachment that the defendant has disposed of his property, with intent to defraud his creditors, would, upon the face of the affidavit, state a cause for attachment. An affidavit which alleges several grounds for attachment in the alternative is bad, as being in the alternative and uncertain. (Stacy v. Stichton, 9 Iowa 399; Kegel v. Schrenkheisen, 37 Mich. 174; Guile v. McNanny, 14 Minn. 520, 100 Am. Dec. 244; Cronin v. Crooks, 143 N.Y. 352; Roberts v Burns, 35 S.E. 922; 1 Shinn on Attach., sec. 150, p 258; 1 Wade on Attach., sec. 56; Drake on Attach., sec. 102, p. 101.)

If the sheriff seizes property belonging to, and in the possession of a person not a defendant in his writ, intending to hold it, and claim it all as property belonging to the person against whom the writ is directed, and intending to hold it upon such levy, notwithstanding any claim of the person in whose possession it is found, and without making any inquiry or effort to ascertain whether all or any portion of it belongs to the party from whose possession he takes it, no demand is necessary, and no duty devolves upon the person from whose possession it is taken to point out the different sources of his title, or right to it, but the sheriff is a trespasser ab initio and the trespass and conversion are complete when the property is taken. (1 Shinn on Attachments, pp. 710, 714, and notes 407; Smith v. Sanborn, 72 Mass. 136; Copp v. Williams, 135 Mass. 401; 1 Wade on Attach., 264-268, sec. 134.)

A demand is only required to give the party upon whom the demand is made a chance to comply therewith, and if it is apparent, or appears plainly and conclusively, that such demand would have been useless, it waives all necessity for making the demand. (Marine Bank v. Fiske, 71 N.Y. 359; Smith v. Sanborn, 72 Mass. 136; Hand v. Scodeletti, 128 Cal. 674; Rosenau v. Syring, 25 Oregon 386, 35 P. 845; Reading v. Lamphier, 9 N.Y.S. 596; Copp v. Williams, 135 Mass. 401; Cobbey on Replevin, sec. 448.)

A. L. Hoppaugh and E. A. Walton for respondents.

RESPONDENTS' POINTS.

It is a well-settled rule of procedure that the bill of exceptions must be settled, signed and filed within the time required by law, or it does not constitute part of the record. (Nye v. Railroad, 124 Mass. 241; Miller v. Cincinnati, 47 Ohio St. 110; Finley v. Whitley, 46 Ohio St. 524; Martin v. railroad, 51 Kan. 162; White v. Gregory, 126 Ind. 95; Marselles v. Howard, 136 Ill. 84; Smith v. State, 20 Fla. 839; Irrigation Co. v. Mining Co., 19 Utah 470, 57 P. 537.)

Section 3064, Revised Statutes 1898, provides for five distinct grounds for attachment, and we concede that of these five, no two can be stated alternatively. The Legislature, in stating five distinct grounds, has, nevertheless, recognized two different phases of the same ground.

Ground No. 3 is as follows: "Has assigned, disposed of or concealed, or is about to assign, dispose of or conceal any of his property with intent to defraud his creditors." The different phases of this ground, the essence of which is fraudulent disposition of property, arise from the time of such fraudulent disposition, and it may be either past or immediate future. Nearly all the cases, and in fact, all the well considered cases hold that a statement of this ground, substantially in the language of the statute, and using 'or' as it is used in the statute, is proper. (Bank v. Little, Roundy & Co., 13 Utah 265, 272; Dawley v. Sherwin [S. D.], 59 N.W. 1027; Klenk v. Schwalm, 19 Wis. 124; Parsons v. Stockbridge, 42 Ind. 121; Tessier v. Ingelhart, 18 Neb. 167; Russell v. Ralph, 53 Wis. 328; McCraw v. Welch, 2 Colo. 284; Conrad v. McGee, 9 Yerg. [Tenn.] 428; Drake on Attach., 102; Wood v. Wells, 65 Ky. 197; Societe, etc., v. Milliken. 135 U.S. 304; Irvin v. Howard, 37 Ga. 18; Cannon v. Logan, 5 Porter [Ala.] 77.)

If the affidavit were defective, it is amendable and not subject to collateral attack. Section 3088, Revised Statutes 1898, provides that the attachment statutes shall be liberally construed; also that any defect in the affidavit or other proceedings may be amended. Further to the effect that the affidavit is amendable, see Longworthy v. Waters, 11 Iowa 432; Henderson v. Druce, 30 Mo. 358; Campbell v. Whetstone, 5 Ill. 361; Penniman v. Daniel, 93 N.C. 332. The following cases hold that where the affidavit is amendable the writ cannot be collaterally attacked: Mathews v. Densmore, 109 U.S. 216; Scrivner v. Dietz, 68 Cal. 1, 8 P. 609; Moore v. Mauck, 79 Ill. 391; Bank v. Jandon, 9 La. Ann. 8; Barber v. Smith, 41 Mich. 138; Burnette v. McCluey, 92 Mo. 230; Moresi v. Swift, 15 Nev. 215; Russell v. Work, 35 N. J. Law 316.

It is utterly immaterial, however, what might be held with reference to the affidavit or its effect if defective for the reason that the execution is a complete justification so far as the process is concerned independently of the attachment proceedings. The attachment proceedings are merged in the judgment. (Drake on Attachments, 224a; Porter v. Pieco, 55 Cal. 165; Harvey v. Foster, 64 Cal. 296; Scriver v. Dietz, 68 Cal. 1.)

At the time of the sale to Johnson all the property was in Norris' possession. It was capable of manual delivery, and Norris continued retaining the possession of it. Under the statute this avoids, as to creditors, the sale. (Sec. 2473, R. S. 1898; Wilson v. Hooper, 21 Vt. 653; Clow v. Woods, 5 S. & R. [Pa.] 280; Kirtland v. Snow, 20 Conn. 23; Edwards v. Bank, 59 Cal. 148; Greenbalm v. Wheeler, 90 Ill. 296; Claflin v. Rosenberg, 42 Mo. 448.)

The goods were all confused and intermingled. The law is well settled that in such cases the sheriff not only has the right, but is bound to levy on the whole, and before he can be put in default or in the wrong the whole of the portion not subject to levy is bound to be identified and pointed out to the officer. (Lewis v. Whitmore, 5 N.H. 364; Shumway v. Rutter, 8 Pick. 443; Sawyer v. Merrill, 6 Pick. 478; Wellington v. Sedgwick, 12 Cal. 469; 8 Enc. Pl. & Pr., 533; Wilson v. Lane, 33 N.H. 466; 1 Shinn on Attach., 210; Smokey v. Peters, Calhoun & Co., 66 Miss. 471, 475; Robinson v. Holt, 39 N.H. 557; Weil v. Silverstone, 69 Ky. 698; Hart v. Ten Eyck, 2 John. Ch. 62, 2 Bl. Com., 405; Duke v. Welsh, 48 N.Y. S.Ct. 16, Jones & S. 516; Mayer v. Wilkins, 37 Fla. 244.)

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., and STRAUP, J., concur.

OPINION

STATEMENT OF FACTS.

The material facts in this case, as disclosed by the evidence are as follows: During the month of July and continuously thereafter until February 23, 1904, one John R. Norris was in possession of what is known as the "Ford Hotel" in Salt Lake City, Utah occupying the building as a tenant and conducting a hotel business therein. When Norris first went into possession all the furniture, carpets, bed linen, beds, table linen, kitchen utensils, and fixtures with which the hotel was furnished belonged to one S.W. Cox, who leased them to Norris at a rental of $ 60 per month. During the time Norris occupied the premises and conducted the business therein referred to, he purchased and placed in the hotel and mingled with the goods he had leased from Cox various articles, which consisted, in part, of carpet, rugs, linoleum, bed linen, table linen, a safe, typewriter, dishes, knives and forks, crockeryware, kitchen utensils, and many other articles necessary to the proper equipment of a hotel. The dishes, knives and forks, bed linen, table linen, and kitchen utensils purchased by Norris were used to replenish the stock of similar articles leased from Cox. In the latter part of September, 1903, Cox offered for sale all of his furniture and fixtures in the hotel. Norris, being desirous of having some persons purchase the furniture who would permit him to continue to lease it and carry on his business, applied to the plaintiff, Johnson, to purchase from Cox, offering at the same time to sell to him for $ 800 the property which he, Norris, had purchased and placed in the hotel at a cost of about $ 1,600. Johnson entertained the proposition favorably and after having examined all the goods and furniture as it was in the hotel, made Cox an offer of $ 1,300 for his (Cox's) furniture subject to a note secured by a chattel mortgage on the furniture amounting to about $ 2,300. This offer was accepted by Cox, and at the same time Johnson purchased from Norris the goods belonging to him and not owned or claimed by Cox. These negotiations were oral and the testimony offered with respect to them was objected to by defendants as tending to vary certain written instruments, bills of sale hereinafter referred to. The sale was completed October 24, 1903. Johnson was not present, but he had sent the money, etc., to J. A. Largent, an attorney at law who was authorized to act for all the parties to the transaction. Largent, through a desire to evidence the sale of all the goods from Norris to Johnson, had Cox execute a bill of sale of the leased goods to Norris, and, at the same time, prepared a bill of sale of all the goods in the hotel from Norris to...