Knutsen v. Phillips

• Decision Date: 13 April 1909
• Parties: J. O. KNUTSEN, Respondent, v. WILLIAM PHILLIPS, Appellant
• Court: Idaho Supreme Court

101 P. 596

16 Idaho 267

J. O. KNUTSEN, Respondent, v. WILLIAM PHILLIPS, Appellant

Supreme Court of Idaho

April 13, 1909

MOTION TO DISMISS APPEAL - ATTACHMENT - MOTION TO DISCHARGE WRIT-AFFIDAVIT FOR-WHEN NOT SUFFICIENT-LIBERAL CONSTRUCTION.

1. Where the certificate to the transcript is not sufficient to identify the papers used by the trial court or judge in the decision from which the appeal is taken, such certificate may be amended by a new certificate or otherwise, if application is made therefor before the hearing of the motion to dismiss.

2. Under the provisions of sec. 4, Rev. Codes of 1909, an affidavit for a writ of attachment must be liberally construed, and must be held sufficient if it appears that the language therein used is substantially equivalent to that used in sec. 4303, Rev. Codes; otherwise not.

3. Under the provisions of subd. 1, sec. 4303, Rev. Codes, the clerk of the court must issue the writ of attachment upon receiv- ing an affidavit by or on behalf of the plaintiff setting forth inter alia that the payment of the debt sought to be collected "has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property," etc.

4. Where the affidavit partially follows the language of the statute in regard to the debt not being secured, and fails to state that it is not secured by "pledge of personal property," and contains no statement equivalent to that the affidavit is not sufficient, as it does not contain the language of the statute or language equivalent to that required by the statute.

5. The statements required in the affidavit must be in the language of the statute or in language of the same meaning.

6. This court declines to follow the construction of the statute under consideration as construed in Glidden v. Whittier, 46 F. 437.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for Kootenai County. Hon. William W. Woods, Judge.

Proceeding to dissolve attachment. Application denied. Reversed.

Order of the court denying the motion to discharge the attachment set aside. Cause remanded. Appellant entitled to all of his costs on appeal except for forty pages of unnecessary matter contained in the transcript.

R. E McFarland, for Appellant.

If the words of the affidavit are in substantial compliance with the terms of the statute, that will be sufficient, but where language other than that of the statute is used in the affidavit, it should be clear and substantially equivalent to that used by the statute. (3 Ency. Pl. & Pr. 10, 11.) "The statutory requirement of the affidavit is a jurisdictional one, and consequently its omission will render all subsequent proceedings void in the absence of any saving provision in the statute to the contrary." (3 Ency. Pl & Pr. 824; Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821.) In the absence of legislation prescribing a more liberal rule, statutes providing for attachment are strictly construed. (Elliot v. Jackson, 3 Wis. 649; Hynson v. Taylor, 3 Ark. 552; Shirley v. The Bride, 5 La. Ann. 260; Moore v. Hamilton, 7 Ill. 429.)

Black &amp Wernette, and E. N. La Veine, for Respondent.

The certificate of the trial judge does not show that the order in this pretended transcript was the order made by said judge from which this appeal is taken. (Doust v. Rocky Mountain Bell Tel. Co., 14 Idaho 677, 95 P. 209; Sand Point v. Doyle, 9 Idaho 236, 74 P. 861.)

The affidavit for attachment is sufficient, and fulfills every requirement of the statute without the words "or any pledge of personal property." (Glidden v. Whittier, 46 F. 437.) Every authority cited by appellant holds that a substantial compliance with the terms of the statute will be sufficient (3 Ency. Pl. & Pr. 10, 11, 26); or the use of language of the same purport or meaning. (Ross v. Gold Ridge Min. Co., 14 Idaho 687, 95 P. 821; O'Conor v. Witherby, 112 Cal. 38, 44 P. 340.)

"The affidavit for attachment need not state the facts out of which the indebtedness of the defendant to plaintiff arose." (Weaver v. Hayward, 41 Cal. 117; Newell v. Whitwell, 16 Mont. 243, 40 P. 867.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an appeal from an order denying a motion for the dissolution of an attachment. A motion has been made to dismiss the appeal upon several grounds, the principal one being that a certificate attached to the transcript is not sufficient to show what papers were considered by the judge in considering the motion to dissolve the attachment. Before the motion to dismiss was finally submitted, a certificate from the judge who decided the matter was filed. That certificate points out specifically what papers were considered on the hearing of said motion and such papers are in the transcript. The motion to dismiss is therefore denied.

It is urged by respondent that the transcript contains the pleadings and other matter not necessary or required to appear in the transcript on this appeal. On an examination of the transcript, we find that it contains sixty-four pages, and that the complaint, answer and other matter not necessary to be contained in the transcript occupy forty pages. The transcript, therefore, contains forty pages of unnecessary matter and cannot be charged against the respondent in case he lose on this appeal.

The only error assigned is that the court erred in overruling the appellant's motion to dissolve the attachment. Said motion was based upon the ground that the affidavit for the attachment was not sufficient under the provisions of subdivision 1, sec. 4303, Revised Codes of 1909, which is as follows:

"The clerk of the court must issue the writ of attachment, upon receiving an affidavit by or on behalf of the plaintiff, setting forth:

"1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims) and whether upon a judgment or upon a contract for the direct payment of money, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless."

The affidavit for the writ of attachment was as follows:

"J. O. Knutsen, being of lawful age, being first duly sworn, on oath deposes and says: That he is the plaintiff in the above-entitled action; that the defendant, William Phillips, is indebted to plaintiff in the sum of $ 3,069, over and above all legal setoffs or counterclaims, and that the said amount is now due from said defendant to the plaintiff upon express contracts for the direct payment of money, which is now due, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, and that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant."

It is contended by counsel for appellant that the affidavit for attachment is insufficient and void, for the reason that it does not conform to the requirements of said provisions of the statute, in that it does not state that the indebtedness or demand "has not been secured by . . . . any pledge of personal property."

Under the rule of liberal construction of statutes, as provided by section 4 of the Revised Codes, said affidavit should be held sufficient if it appears that language used is substantially equivalent to that used in subdivision 1, sec. 4303, Revised Codes. (3 Ency. Pl. & Pr 10.) It appears from the affidavit that there was no attempt to use language the equivalent of that used in said section of the statute. The affidavit follows the statute thus far, to wit: "and that the payment of the same has not been secured by any mortgage or lien upon real or personal property," but fails to contain the following clause: "or any pledge of personal property." That statute provides that three things must be stated in the affidavit, to wit: That the debt is not secured by any "mortgage"; or lien upon real or personal property; or any pledge of personal property. Now, if the plaintiff had used in that affidavit language...