Letz v. Letz, 8937

• Decision Date: 10 March 1950
• Docket Number: No. 8937,8937
• Citation: 215 P.2d 534,123 Mont. 494
• Parties: LETZ v. LETZ.
• Court: Montana Supreme Court

Page 534

215 P.2d 534

123 Mont. 494

LETZ v. LETZ.

No. 8937.

Supreme Court of Montana.

Submitted Jan. 31, 1950.

Decided March 10, 1950.

Hoffman & Cure, Great Falls, for appellant. H. B. Hoffman, Great Falls, argued the case orally for appellant.

Charles Davidson, Great Falls, for respondent. Charles Davidson, Great Falls, argued the case orally for respondent.

ADAIR, Chief Justice.

Appeal from certain orders made after judgment and in proceedings supplementary to execution.

In the fall of 1947 Jack M. Letz planted to winter wheat certain portions of the Mett Letz ranch in Cascade county, Montana, owned by his father Mett Letz. The son had theretofore contracted to purchase the ranch which was operated by the son and his father, each of whom was to receive one-half the crops to be harvested thereon.

The son and his wife lived on the ranch located near the town of Ulm until the late winter or early spring of 1948, when they removed to Great Falls where they have since resided with the wife's mother, Eva M. Merritt.

By August 4, 1948, the wheat crop had sufficiently ripened to be ready to harvest. On that date, a chattel mortgage executed by the son, as mortgagor, to his mother-in-law, Eva M. Merritt, as mortgagee, covering the 'mortgagor's undivided one-half interest in all crops' planted or harvested during the year 1948 on certain described portions of the Mett Letz ranch, lying in sections 32 and 33, township 20 north, range 2 east, was filed in the office of the county clerk and recorder of Cascade county.

On the following day (August 5th), Mett Letz, the father, brought this suit against his son on a $6,000 promissory note made and given by the son July 23, 1946. A writ of attachment issued in the action and the son's share of the wheat crop from the southwest quarter of section 34, township 20 north, range 2 east, was attached, same being on land not included in nor covered by the crop mortgage given the mother-in-law.

On August 13, 1948, a second chattel mortgage executed by the son as mortgagor to his attorney, Charles Davidson, as mortgagee, was filed in the office of the county clerk and recorder, covering the son's undivided one-half interest in the crop harvested or then being harvested from the southeast quarter of section 34, being from land neither covered by the crop mortgage of August 4th nor by the attachment and levy of August 5th.

In his return on the writ the sheriff accounted for 4,598 bushels and 20 pounds of wheat as combined and threshed from the southwest quarter of section 34. This wheat was sold by agreement of the father and son for $8,123.44, and the sheriff retained in his possession the half thereof or $4,066.72 as the son's share of the proceeds of the crop from the southwest quarter of section 34.

The son contested the suit in which the attachment issued. After issue joined the action was tried to a jury commencing February 3, 1949. After hearing all the evidence of the parties the jury, on February 7, 1949, returned its verdict for the father for the full amount demanded in his complaint.

On February 7, 1949, judgment for $7,233 and costs was entered for the father Mett Letz, plaintiff's duly verified memorandum of costs and disbursements was served and filed and a writ of execution issued and was delivered to the sheriff requiring that he make out of the judgment debtor's property the amount required to satisfy the judgment.

Immediately upon the return and filing of the verdict against him, the son set out for his father's ranch and removed therefrom a 1934 Standard power buck rake owned by him, taking the machine to the home of Claude Woods in Ulm, where he left it. On the same day (February 7th), he removed from the ranch a model 17 John Deere sixteen-foot combine owned by him. This machine he transported by truck to the outskirts of Great Falls where a viaduct across the highway near the Sun River bridge proved too low to permit the load to pass thereunder so the son left his combine at a nearby tourist camp and proceeded into Great Falls without it.

On the following morning, February 8, 1949, the son presented himself at the law offices of Johnson and Williams in Great Falls, where he executed a bill of sale purporting to transfer to Johnson and Willians, as transferees, his title to the buck rake and combine. This instrument states that it is understood and agreed by and between all parties thereto that title to the personal property described therein shall pass 'as of the date of this Bill of Sale and immediately upon the delivery of this Bill of Sale.' (Emphasis supplied.)

Immediately upon the execution of the unacknowledged bill of sale, Carter Williams, Esq., a member of the transferee partnership, took the document to the county courthouse and filed same in the office of the county clerk and recorder at 11:20 o'clock a. m., on February 8, 1949. See: R.C.M.1947, Sec. 73-105; Hart v. Barron, Mont., 204 P.2d 797; Epletveit v. Solberg, 119 Mont. 45, 55, 169 P.2d 722; Lee v. Laughery, 55 Mont. 238, 244, 175 P. 873; Baum v. Northern Pac. Ry. Co., 55 Mont. 219, 222, 175 P. 872.

Thereupon, the attorney, accompanied by the judgment debtor and his mother-in-law, Mrs. Eva M. Merritt, proceeded in an automobile to the tourist camp where the debtor had left his combine. They arrived at about 11:30 o'clock a. m., being approximately ten minutes after the filing of the bill of sale at the courthouse.

D. J. Leeper, the sheriff, and Robert Hunter, his deputy, armed with the writ of execution delivered to them the day before, were already at the combine when the attorney and his companions drove up. The attorney got out of the car and, walking over to the sheriff and his deputy, talked with them for about fifteen minutes, during which time the debtor and his mother-in-law sat in their car but at such a distance as to be unable to hear the conversation between the attorney and the officers.

The parley with the attorney concluded, Sheriff Leeper walked to the car wherein the debtor and his mother-in-law were sitting and there delivered to the debtor a copy of the writ of execution and a copy of the sheriff's notice of seizure and levy, informing the debtor that he (the sheriff) and his deputy had levied upon the combine and that 'they had taken it into their possession.'

Thereupon the attorney, the debtor and Mrs. Merritt proceeded by automobile to Ulm, some ten miles distant. Claude Woods was not then at home but the debtor pointed out his buck rake in the yard of the Woods place and the parties then returned to Great Falls without disturbing or moving the buck rake.

At about 1:30 o'clock that afternoon (February 8th) the attorney dictated to his stenographer certain notes or memoranda 'just in case there was any question that came up about this bill of sale' she would be in a position to verify it.

In his return on the writ of execution the sheriff certified that he received the writ on the 7th day of February, 1949, and personally served it 'on the 8th day of February, 1949, upon Jack M. Letz the defendant named therein, by delivering a copy of the said Execution Writ together with a copy of the Sheriff's Notice to him personally in the county of Cascade and levying upon the following described personal property, to-wit: * * * One No. 17 John Deere combine; One Power Rake; * * * Cash in the amount of $4066.72.'

On February 11, 1949, the judgment debtor served and filed a motion to have the trial court tax the costs in the action.

On February 15, 1949, being a week after the sheriff made his levy, Johnson and Williams made and delivered to Eva M. Merritt a bill of sale purporting to transfer to her the title, if any, which they have to the combine and power buck rake reciting therein that it is 'agreed by all parties hereto that title to the above described personal property passed to Eva Merritt by a sale on the 8th day of February, 1949, when said property was sold to her by Jack M. Letz and Helen Letz, and that this Bill of Sale is executed and delivered to release the interest of Johnson and Williams, if any, to said property.'

Also on February 15, 1949, Mrs. Merritt signed a notice of third party claim and subscribed and swore to an affidavit before Carter Williams, as a notary, therein laying claim to the $4,066.72 in cash, the combine and the buck rake, and attorney Williams filed such notice and affidavit with the sheriff on behalf of the third party claimant.

Following such filing, Mett Letz, the judgment creditor, gave the sheriff a good and sufficient bond in the sum of $10,000 to indemnify him against loss or damage by reason of retaining the property. R.C.M.1947, Secs. 93-4320 and 93-5812.

On March 4, 1949, an order issued, on application of plaintiff's counsel, which was served upon the third party claimant and the judgment debtor, requiring that they appear on a day certain to answer concerning any property of the judgment debtor in the possession of either of them, which order was personally served upon each.

On March 10, 1949, the judgment creditor served and filed a motion for an order allowing $1,205.85 as the costs of combining the standing crop of grain so taken under the attachment.

Thereafter the district court sitting without a jury heard: Defendant's motion to tax the costs; plaintiff's motion for an order to allow as costs the full amount paid and expended by the sheriff for the combining and threshing of the attached grain, and, in proceedings supplementary to execution, the issue of the third party claimant's asserted ownership of personal property levied upon under the writ of execution as property of the judgment debtor.

Taxing costs. Following the hearing the district court ordered that plaintiff's memorandum of costs and disbursements be 'amended by changing the Sheriff's costs and fees * * * from $1,205.85 to $608.63 and that the total costs listed * * * be changed and amended from $1,241.75 to $644.53,' and...