Kimball v. Raymond

• Decision Date: 11 June 1903
• Citation: 9 Idaho 176,72 P. 957
• Parties: KIMBALL v. RAYMOND
• Court: Idaho Supreme Court

72 P. 957

9 Idaho 176

KIMBALL v. RAYMOND

Supreme Court of Idaho

June 11, 1903

ATTACHMENT-LAW PROVIDING FOR PRO-RATING-DOES NOT APPLY TO JUSTICE'S COURT.-Section 4304, as amended in 1895, and re-enacted in 1899, providing for the pro-rating of the proceeds or property attached, does not apply to the justice court practice of this state.

(Syllabus by the court.)

JUDGMENT for respondent, from which appellant appeals. Affirmed. Honorable George H. Stewart, Judge.

Affirmed with costs.

Lot L Feltham, for Appellant, cites no authorities upon the point decided by the court not cited in the opinion.

B. S Varian, for Respondent.

Notwithstanding the provisions of section 3262 of the Code of Civil Procedure, Idaho Codes Annotated (Rev. Stats., sec. 4689), cited by counsel for appellant in his brief, the contention of appellant is untenable, for the reason that said section does not contemplate that a part only of a section relating to the district court practice should apply. It refers to "sections." That is an entire section. The section under discussion is as follows: "The sections of this code providing for attachments out of the district court, except as in this chapter expressly provided, are applicable to attachments issued out of justice's courts, the necessary changes and substitutions being made therein." (Code Civ. Proc., sec. 3632; Rev. Stats., sec. 4689.) We will concede that if the new matter interjected into section 4304 of the Revised Statutes by the act of February 14, 1899, had been embodied in a separate section, by itself, as a part of the practice act relative to the district court practice, its provisions might be held applicable to attachments in both the justice and district courts. That the legislature did not adopt this course shows a clear intention to limit the operation of the provisions of the amendment to subject matter of section 4304, Revised Statutes--i. e., attachments under the district court practice. Speaking through Mr. Chief Justice Quarles, this court has laid down the rule for the construction of attachment laws in this state as follows: "Under our code the rule of construction to be applied is this: If there is any uncertainty as to what the statute requires, construe the statute liberally, but the requirements of acts to be performed, when the statute is so construed, must be strictly performed." (Vollmer v. Spencer, 5 Idaho 557, 51 P. 610; Sutherland on Statutory Construction, p. 419, sec. 333.) "Whether a statute be a public or a private one, if any of the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it ministerially or judicially, it is necessarily inoperative." (Sutherland on Statutory Construction, sec. 261, quoting from the opinion in Drake v. Drake, 4 Dev. (N. C.) 110.) Statutes that are so ambiguous or defective in their terms as to convey no definite or certain meaning are invalid. (23 Am. & Eng. Ency. of Law, 228, and cases cited.) Where the statute is ambiguous or open to two constructions, the argument of hardship, injustice, inconvenience or absurdity is strong. (Sutherland on Statutory Construction, sec. 324; Black on Interpretation of Laws, sec. 46.)

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

OPINION

The facts are fully stated in the opinion.

STOCKSLAGER, J.

This case comes here for review from the district court of Washington county. The case was tried in the district court on an agreed statement of the facts. Judgment was rendered and entered in favor of the plaintiffs in the lower court, respondent here. From this judgment appellant--the defendant in the lower court--appeals. In order to have a fair understanding of the facts in this case, and for the further reason that the conclusion we reach is a matter of considerable importance to the members of the bar of the state, as well as a large number of litigants each year, involving, as it does, the attachment law of the state, we have deemed it best to copy the entire statement of facts in this opinion.

The said parties hereby agree upon the following statement of facts, and submit the same to the court for the determination of the points in controversy hereinafter specified. The facts agreed on are as follows, to wit:

"1. That N. F. Kimball, plaintiff above named, commenced an action in the probate court of Washington county, Idaho against one D. J. Butcher, to recover the sum of $ 144.41, on the sixteenth day of October, 1902, and on said date filed proper affidavit and undertaking for an attachment; and thereafter, on said sixteenth day of November, 1902, a writ of attachment and summons duly issued out of said court in said action. That on the seventeenth day of October, 1902 one W. J. Windes, then being the duly elected, qualified and acting constable for the Cambridge precinct, of Washington county, Idaho under and by virtue of the writ of attachment aforesaid, duly levied upon and took into his possession and control all and singular the stock of merchandise belonging to the defendant, D. J. Butcher, and situate at Cambridge, Idaho and placed one Philip A. Markson in charge thereof as keeper.

"2. That one Henry Raymond commenced an action in the said probate court of Washington county, Idaho against the said D. J. Butcher, defendant, on the second day of November, 1902, to recover the sum of $ 400, and on said day filed proper affidavit undertaking for attachment; that thereafter, on said second day of November, 1902, a writ of attachment and summons duly issued out of said court in said action; that thereafter on the third day of November, 1902, one James P. Gray, the duly elected, qualified and acting sheriff of Washington county, Idaho served the said summons and the said writ of attachment by levying upon the stock of merchandise belonging to the said D. J. Butcher, then in the possession of the said W. J. Windes, as aforesaid, and placing one Childers in possession thereof with the said P. A. Markson, as keeper under the said sheriff; that thereafter, on the third day of November, 1902, the said W. J. Windes, constable, and James P. Gray, sheriff, by agreement, placed the said Childers in sole possession of said stock of merchandise, as keeper for both and each of said officers; that, on the third day of November, 1902, the said probate court, by its clerk, caused notice of the said attachment of the said Henry Raymond against D. J. Butcher to be posted at the front door of the courthouse at Weiser, Idaho and caused the same to be published for three consecutive issues, to wit, November 8, 15 and 22, 1902, in the 'Weiser World,' a weekly newspaper published at Weiser, Washington county, Idaho.

"3. That on the twenty-fourth day of October, 1902, the said probate court made and entered judgment in the said action therein pending wherein Nelson F. Kimball (plaintiff above named) was named as plaintiff and the said D. J. Butcher was named as defendant, against the said D. J. Butcher and in favor of the said N. F. Kimball, for the sum of $ 147.41 principal and interest and $ 7.10 costs, total $ 154.51.

"4. That, on the seventeenth day of November, 1902, the said probate court made and entered judgment in the said action therein pending wherein the said Henry Raymond (defendant above named) is named as plaintiff and the said D. J. Butcher is named as defendant, against the said D. J. Butcher and in favor of the said Henry Raymond, for the sum of $ 400 and $ 52.40 costs; total $ 452.40.

"5. That on the twenty-first day of November, 1902, under and by virtue of writs of execution issued out of the said probate court of Washington county, Idaho in the said action entitled N. F. Kimball, Plaintiff, v. D. J. Butcher, Defendant, and said action of Henry Raymond v. David J. Butcher, the said W. J. Windes, constable as aforesaid, sold at public auction, according to law, all and singular the stock of merchandise held under the writs of attachment aforesaid; that said merchandise brought the total sum of $ 390, and after deducting the costs of sale, keeper's fees, commissions, etc., there remained in the hands of the said constable the sum of $ 256.75, which, pursuant to stipulation of counsel for the parties herein, a copy of which said stipulation is hereto annexed, marked Exhibit 'A' and made a part hereof, was deposited by said constable with the Honorable Thomas M. Jeffreys, as probate judge of said Washington county, Idaho pending the decision of the question herein involved.

"The points in controversy, and upon which the decision of the...