Mills v. Smiley

• Decision Date: 21 December 1903
• Citation: 9 Idaho 317,76 P. 783
• Parties: MILLS v. SMILEY
• Court: Idaho Supreme Court

76 P. 783

9 Idaho 317

MILLS v. SMILEY

Supreme Court of Idaho

December 21, 1903

WRIT OF ASSISTANCE-MOTION TO DISMISS APPEAL FROM ORDER REFUSING TO SET ASIDE-WHEN NOT GRANTED.-When writ of assistance is granted and issued, one who was not a party to the action at the time of such issue may move to set the order aside and appeal from an order denying the motion.

MOTION TO SET ASIDE ORDER GRANTING WRIT OF ASSISTANCE WILL NOT BE GRANTED WHEN.-When it appears from the record that the moving party has not placed his deed upon record, he is not a necessary party to the action under the provisions of section 4520 of the Revised Statutes, Idaho, and his motion to set aside order granting writ will be denied.

(Syllabus by the court.) [Copyrighted Material Omitted] [Copyrighted Material Omitted]

APPEAL from the District Court of Latah County. Honorable Edgar C Steele, Judge.

Judgment on motion overruling motion to set aside writ of assistance from which appellant appeals. Judgment affirmed.

Writ denied, with costs.

A. J. Green and S. S. Denning, for Appellant.

Counsel for respondent moves the court to dismiss the appeal on the ground that the appeal should have been taken from the order granting the writ of assistance, instead of moving to set the writ aside and then appealing from the order denying the motion, and cites Davis v. Donner, 82 Cal. 35, 22 P. 879, in support of his contention. This case would be exactly in point had Smiley been a party defendant in the action. The statement in this case says: "The defendant John Donner moved to set aside the writ upon affidavits of himself and wife that a portion of the property was her separate estate. His wife, Sarah Donner, was not a party to the action, nor to the motion, excepting by her affidavit in aid of the motion of John Donner." The appeal is by the defendants in the action. The court held that the "defendants" should have appealed from the order granting the writ and not made a motion to set the writ aside and then appealed from the order denying it, which as the court said "would be a mere negative action of the court declining to disturb its first decision." Appellant contends that this case is not applicable to the case at bar. In the case at bar Smiley was not a defendant, and had no notice of any proceedings against him until after the writ of assistance had been granted. The case of People v. Grant, 45 Cal. 97, is exactly in point. (The Mayor and Common Council of the City of San Jose v. Robert J. Fulton, 45 Cal. 316.) The first assignment of error is where the court made an order for the publication of the summons in the foreclosure proceedings. This order was made upon the affidavit of one of the attorneys for the plaintiff, and is as follows, to wit:

"AFFIDAVIT FOR PUBLICATION OF SUMMONS.

"Edwin T. Coman, being first duly sworn upon oath, deposes and says, that he is agent and one of the attorneys for the plaintiff in the above-entitled action; that due and diligent search has been made for the defendants Pauline E. Maupin, Thomas M. Morgan, Rachel Morgan, C. F. Adams and the Security Savings and Trust Company of Portland, Oregon, a corporation, and that said defendants cannot be found within the state of Idaho. EDWIN T. COMAN.

"Subscribed and sworn to, etc."

This affidavit did not give the court authority to make an order for the publication of the summons, and consequently the court never gained jurisdiction over these defendants. (Idaho Rev. Stats., sec. 4145; Strode v. Strode, 6 Idaho 67, 96 Am. St. Rep. 249, 52 P. 161; Jordan v. Giblin, 12 Cal. 100; Swain & Marsh v. Chase, 12 Cal. 283; Braly v. Seaman, 30 Cal. 611; Ricketson v. Richardson, 26 Cal. 149; State ex rel. Boyd v. Superior Court, 6 Wash. 352, 33 P. 827; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 P. 1089; Black on Judgments, sec. 232; Columbia Co. v. Warner Co., 138 Cal. 445, 71 P. 498.) When a sheriff makes his return on a summons and certifies that some of the defendants have not been found or served, it is necessary to procure an alias summons to serve upon said defendants should they afterward be found, or for publication of said summons by order of the court. (Idaho Rev. Stats., sec. 4141.) The fifth and sixth assignments of error raise the question of the validity of the writ of assistance, and the error of the court in not setting the same aside. (Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Burton v. Lies, 21 Cal. 88; Harlam v. Rackerby, 24 Cal. 561; Mayor of San Jose v. Fulton, 45 Cal. 316; Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104, 106.)

Forney & Moore, for Respondent.

This is an appeal from an order refusing to set aside an order for a writ of assistance. The order that a writ of assistance issue was a special order made after final judgment, and therefore appealable. This order was made on the twelfth day of May, 1903, but no appeal is taken from that order. But the appeal herein is prosecuted from the refusal of the court to grant the motion of Smiley to set aside the order granting the writ of assistance. This we claim is not appealable. (Davis v. Donner, 82 Cal. 35, 22 P. 879; Henley v. Hastings, 3 Cal. 341; California etc. R. R. Co. v. Southern P. R. R. Co., 65 Cal. 295, 4 P. 13.) The respondents move this court to dismiss the appeal upon the ground that this court has no jurisdiction for the reason that no notice of appeal was served either upon A. L. Mills or Pauline E. Maupin or Samuel Geer or Thomas M. Morgan or Rachel Morgan or M. J. Shields Company, a corporation, or C. F. Adams or the Surety Savings and Trust Company, of Portland, Oregon, a corporation. All of these were parties to the action in the lower court and were adverse parties within the meaning of the statute. The question of jurisdiction may be raised for the first time in this court. (Rev. Stats., sec. 4178; Aram v. Edwards (Idaho), 74 P. 961.) It is clearly apparent from the record that all of the above parties would be affected by a modification or reversal of the judgment rendered by the lower court in this action. (Titiman et al. v. Alamance Min. Co., ante, p. 240, 74 P. 529; Baker v. Drews, et al., ante, p. 276, 74 P. 1130.)

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

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.

In the year 1891, one Pauline E. Maupin was the owner in fee simple of W. 1/2 of S.E. 1/4 and N.E. 1/4 of S.E. 1/4, section 23 township 39 N., R. 5 west, B. M. On July 6, 1891, she gave to Thomas L. Krutz a mortgage on said land to secure a promissory note for the sum of $ 175, with ten interest coupon notes attached, the note by its terms becoming due July 6, 1896, and provided for interest at the rate of seven per cent per annum until maturity and twelve per cent until paid. The interest coupon notes were given for the interest on the $ 175 note and were by their terms due semiannually, and if not paid when due to bear interest at the rate of twelve per cent per annum.

On said July 6, 1891, she also gave to C. A. Leighton a mortgage on the same land to secure a note for $ 26.50 in ten equal installments to become due on each six months until they were all paid.

On the twenty-third day of September, 1895, said Krutz assigned to A. L. Mills (plaintiff herein) the note for $ 175 with the mortgage securing the same.

On the twenty-seventh day of September, 1895, said Leighton assigned the note for $ 26.50, together with his mortgage securing the same, to said Mills, the plaintiff.

After mortgaging said land said Pauline E. Maupin conveyed the land to one Thomas Childers and said Childers conveyed to Thomas E. Morgan and Rachel, his wife, who, on the second day of February, 1894, conveyed by warranty deed said land to J. L. Smiley, appellant. Said Smiley took possession of the land February 2, 1894, and continued to live thereupon until May 20, 1903, when he was ejected by the sheriff under a writ of assistance. The land was assessed to Smiley and he paid the taxes thereon for the years 1897, 1898, 1899, 1900, 1901 and 1902.

On the twenty-fourth day of September, 1896, plaintiff Mills filed his complaint in the district court of the second judicial district for Latah county, attempting to foreclose the mortgage given by Pauline E. Maupin to Thomas L. Krutz; also to foreclose the mortgage given by Pauline E. Maupin to C. A. Leighton, and in said action made the following persons defendants: Pauline E. Maupin, a widow, Samuel Geer, Thomas M. Morgan, Rachel Morgan, his wife, M. J. Shields Company, a corporation, C. F. Adams and Security Savings and Trust Company of Portland, Oregon, a corporation.

September 24th a summons was issued against all of said parties. October 16, 1896, the sheriff of Latah county made return on said summons, not finding within the state Pauline E. Maupin, Thomas M. Morgan and Rachel Morgan and others of the defendants. May 17, 1897, an affidavit for publication of summons was made by Edwin T. Coman, one of the attorneys for the plaintiff, and on the same day the court made the order for such publication. December 7th proof of such publication was made and on the same day default was taken against the defendants not found as shown by the summons returned by the sheriff, and decree of foreclosure and sale was entered against the defendant, Pauline E. Maupin, and against said land; order of sale placed in the hands of the sheriff of said county for the sale of said land, which was returned and filed without any action shown by the return on the thirteenth day of January 1898. December 7th plaintiff's attorney moved to vacate the decree of foreclosure and sale heretofore entered, and January 13, 1898, the court granted the motion and made the order.

On the nineteenth day of May, 1902...