O'Malley Lumber Co. v. Martin

• Decision Date: 08 April 1935
• Docket Number: Civil 3511
• Citation: 43 P.2d 200,45 Ariz. 349
• Parties: O'MALLEY LUMBER COMPANY, a Corporation, Appellant, v. JEROME P. MARTIN and ALICE J. MARTIN, His Wife, HARRY R. TALMAGE, Trustee in Bankruptcy of Jerome P. Martin, Bankrupt, SUNSHINE CITY INVESTMENT COMPANY, a Corporation, and PHIL J. MARTIN, Jr., Appellees
• Court: Arizona Supreme Court

43 P.2d 200

45 Ariz. 349

O'MALLEY LUMBER COMPANY, a Corporation, Appellant, v. JEROME P. MARTIN and ALICE J. MARTIN, His Wife, HARRY R. TALMAGE, Trustee in Bankruptcy of Jerome P. Martin, Bankrupt, SUNSHINE CITY INVESTMENT COMPANY, a Corporation, and PHIL J. MARTIN, Jr., Appellees

Civil No. 3511

Supreme Court of Arizona

April 8, 1935

APPEAL from an order of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Order set aside and case remanded for further proceedings.

Messrs Conner & Jones, for Appellant.

Mr George O. Hilzinger Mr. Arnold T. Smith and Mr. James E Dunseath, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an appeal from an order of the superior court of Pima county dissolving certain writs of attachment and garnishment in a case wherein O'Malley Lumber Company, a corporation hereinafter called plaintiff, attached certain property belonging to Jerome P. Martin and Alice J. Martin, his wife, hereinafter called defendants, and also secured the issuance of a writ of garnishment against Sunshine City Investment Company. There were several other parties defendant, but the questions raised on this appeal are such that it is unnecessary to discuss their participation in the action.

The questions involved are of law only, the undisputed facts being as follows: In 1929 defendants entered into a contract with the Murphy Building Company, hereinafter called the Company, by which the latter agreed to erect and furnish a certain apartment building on defendants' property for $101,100. The defendants paid the Company no cash, but gave their note to Southern Arizona Bank & Trust Company for $60,000 secured by a first mortgage on the property, and their note for $41,100 to the Company secured by a second mortgage thereon, and later an unsecured note to the Company for certain extras, thus making payment in full under the contract. The Company thereafter transferred the second note and mortgage to plaintiff, which in 1931 filed suit against the defendants thereon, and also sued out an attachment under sections 4241 and 4242, Revised Code 1928, averring as grounds therefor that the debt had not been fully secured. Immediately after the writ was issued, an affidavit for garnishment against the Sunshine City Investment Company was filed under section 4258, Revised Code 1928, alleging as cause therefor that an original attachment had theretofore been issued. Thereafter defendants moved to dissolve the writs and undertook to traverse the affidavit made in support of the writ of attachment, alleging that the debt sued on was fully secured. Plaintiff moved to strike the traverse on the ground that the matters contained in an affidavit of attachment made under section 4242, supra, are not traversable. This last motion was by the court denied and the traverse was heard on its merits, resulting in certain findings made by the trial court, and an order dissolving the writs of attachments and garnishment.

There are two questions of law presented by the assignments of error, the first being whether the affidavit of attachment was traversable, and the second whether, if it is so traversable, the court erred in refusing to consider evidence of the actual cost of the improvements, above referred to, and the value of the property which secured the mortgage in question, for the purpose of determining whether or not the debt involved in the action was "fully secured" within the meaning of the statute.

We consider first whether or not the affidavit of attachment was subject to traverse. It is the contention of plaintiff that our attachment statute, on which the affidavit was based, was taken from Texas; that the courts of that state have held consistently and repeatedly that affidavits of this kind are not subject to traverse, the owner of the attached property being relegated to his remedy on the attachment bond, and further, that our statute, taken as a whole, shows affirmatively that it was not the intention of our legislature to allow a traverse of an affidavit of this nature. It is the position of the defendants that the particular portion of the attachment statute in question was not taken from Texas but from California; that under the decisions in that state on a similar statute it is held that the affidavit is subject to traverse; that such is the majority rule in the various states having a similar statute, and, further, that our statute contemplates a traverse of any affidavit on attachment. In determining the meaning of a statute it is the primary duty of the court to attempt to ascertain the meaning the legislature attributed to it when it was adopted. In order to assist the courts in fulfilling this duty, experience has led to the adoption of certain canons of construction which are suggested by the parties as being peculiarly applicable to the present situation.

The first one, which has been repeatedly approved by this court, is that when the legislature of one state adopts a law from another state, it is adopted with the meaning which has, previous to the time of adoption, been given the statute by the courts of the state from which it is taken. Goldman v. Sotelo, 8 Ariz. 85, 68 P. 558; Lowell v. Lowell, 29 Ariz. 138, 240 P. 280; State v. Meeks, 30 Ariz. 436, 247 P. 1099. We have held, however, that while this rule will be followed generally, yet if it appears to us that the meaning attributed to the statute by the courts of the sister state is not in accordance with sound logicor the fundamental principles of common sense and justice, we are not absolutely bound to follow those decisions. Kingsbury v. State, 28 Ariz. 86, 235 P. 140; Phoenix Title & Trust Co. v. Old Dominion Co., 31 Ariz. 324, 253 P. 435, 59 A.L.R. 625.

It is therefore necessary for us, in determining whether this canon will solve the question before us, to decide, first, the source from which the statute in question comes, and second, whether the interpretation placed thereon by the courts of the state from which it is taken is consonant with the fundamental principles of logic and justice, and the declarations of our own legislature upon the matter. The first Arizona statute covering the subject of attachment is found in the Code of 1877 and was admittedly taken from California. In 1887, however, our statutes were revised and title IV, chapter 1 of the Code of 1887, which deals with the subject of original attachments, is almost a verbatim copy of title IX, chapter 1, articles 152 et seq., of the Revised Statutes of Texas of 1879. This court in the case of Wartman v. Pecka, 8 Ariz. 8, 68 P. 534, in discussing that Code said: "... Our attachment law in this respect follows that of Texas, from whence it came to us,..." and in the later case of Lount v. Holladay, 28 Ariz. 16, 234 P. 1084, in interpreting paragraphs 1421 and 1422, Revised Statutes of Arizona 1913, which are identical with sections 67 and 68 of the Code of 1887, we said:

"As was said in Wartman v. Pecka, 8 Ariz. 8, 68 P. 534, our attachment statute came to us from Texas, and the decisions thereon in that state are very persuasive...."

In 1891, however, our legislature for some reason came to the conclusion that sections 40, 41 and 43 of the Code of 1887, which were substantially copies of articles 152, 153 and 155 of the 1879 Texas Statutes, were insufficient or unsatisfactory, and proceeded to amend them by substituting for sections 40 and 41 provisions which, both in form and substance, differ so widely from the Texas statute, that the only similarity thereto is the fact that they both deal with the subject of attachment, and by repealing entirely section 43, which was the only provision of the law permitting attachments before a debt was due, and which reads as follows:

"43. The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceeding shall be had thereon as in other cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due."

Nothing like sections 40 and 41, supra, as they appeared after they were amended by the statute of 1891, has ever appeared in the attachment statutes of the state of Texas. But upon examining the California Code of Civil Procedure of 1873-74, we find that sections 537 and 538, thereof, which had been in force in California for many years at the time our legislature adopted the statute of 1891, while differing in some minor respects from that statute are in substance almost identical with sections 40 and 41, as amended. These amendments of 1891 were carried forward into the Civil Code of 1901 as paragraphs 332 and 333 thereof, and such paragraphs have come down through...