Murphy, Grant & Co. v. Zaspel
| Decision Date | 07 June 1905 |
| Parties | MURPHY, GRANT & CO. v. ZASPEL |
| Court | Idaho Supreme Court |
DISCHARGE OF ATTACHMENT-AFFIDAVIT, WHEN MADE-SECURITY FOR DEBT-BANKRUPTCY PROCEEDINGS-CREDITORS IN BANKRUPTCY PROCEEDINGS.
1. Where it is shown that the affidavit for a writ of attachment was made twenty-eight days before the commencement of the suit and issuance of the writ, where the ground for the writ is that the debt has not been secured, the writ should be discharged on proper motion.
2. The ground for attachment must exist at the time the writ is issued, and if the ground on which the attachment is sought is "no security" for the debt, it must be shown that such debt is not secured at the time the writ issues which cannot be done by an affidavit made long before the suit was commenced. Said affidavit was not made as near as practicable to the date of the issuance of the writ.
(Syllabus by the court.)
APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.
Motion to discharge an attachment. Motion denied. Reversed.
Reversed and remanded, with direction. Costs awarded to appellant.
Quarles & Pritchard, for Appellant.
It was intended and contemplated by our code (Rev. Stats., secs. 4302, 4303) that the affidavit should be made simultaneously with the commencement of the action, or after the action is commenced, and at the time of the issuance of the writ. The conditions upon which the writ issues must be shown to exist at that time. If it will answer to show that they existed a month before, or twenty-eight days before, as in the case at bar, then it will be sufficient that they are shown to exist a year, or two years or longer before. The legislature did not so intend. If the ground upon which the attachment is sought is "no security" for the debt sued on, as is the case here, it must be shown that the debt sued on is not secured at the time the writ issues, which cannot be done by an affidavit made twenty-eight days before then. We think the rule is tersely and correctly stated in 4 Ency. of Law, pp. 517, 518; Sydnor v. Chambers, Dall. (Tex. ) 610; Adams v. Lockwood, 30 Kan. 373, 2 P. 626; Robinson v. Burton, 5 Kan. 293. Creditors have a lien on proceeds of property of bankrupt when his estate is administered in bankruptcy. (In re Elmira Steel Co., 109 F. 456 (see p. 474); 16 Am. & Eng. Ency. of Law, 2d ed., par. 2, p. 721.) An attachment cannot be issued when the plaintiff has a lien to secure his debt, and it matters not whether the lien is one recognized by courts of equity or is one of statutory origin and resting in contract. (Hill v. Grigsby, 32 Cal. 55.) The affidavit being false as to security, the motion to discharge the attachment should have been sustained. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. Rep. 279, 29 P. 851; Vollmer v. Spencer, 5 Idaho 557, 51 P. 609; William v. Friedman, 3 Idaho 734, 35 P. 35; Salmon River Min. etc. Co. v. Dunn, 2 Idaho 26, 3 P. 911; 2 Cook on Corporations, 4th ed., sec. 774.)
H. E. McElroy and H. W. Dunton, for Respondents.
As to delay in filing attachment affidavit: We have filed affidavit explaining delay. However, we believe the affidavit sufficient under the authorities. The rule is given in Drake on Attachments, third edition, section 111. It is proper that an affidavit should be made as near as practicable to the time for the institution of the suit; but it is believed to be a general practice to allow attachments to issue on affidavits made some time before the issuing of the writ. (Wheeler v. Farmer, 38 Cal. 215.) In the case of O'Neil v. New York & Silver Peak M. Co., 3 Nev. 141, the court sets forth at length the reason underlying the rule as declared by Drake on Attachments. (Campbell v. Wilson, 6 Tex. 379; Wright v. Ragland, 18 Tex. 289.) Where attachment was obtained on the ground that the defendant was a nonresident of the state, it was held that it was not sufficient ground to quash the attachment that the affidavit was made in New York on the ninth day of June, and was not filed until the third day of July. (McClanahan v. Brack, 46 Miss. 246; Graham v. Bradbury, 7 Mo. 281.) The foregoing, so far as we can learn, comprise all of the litigated cases on this subject. The most of them are referred to in volume 3, page 6, Encyclopedia of Pleading and Practice, under the head of "Laches in Issuing the Writ."
This appeal is from an order denying a motion to discharge an attachment. The action was commenced May 27, 1904, and the affidavit for attachment was sworn to on the twenty-ninth day of April, 1904, and the attachment issued on that date. The affidavit was sworn to twenty-eight days prior to the commencement of the suit.
It appears that from April, 1903, the appellant, Ida Zaspel, and her codefendant, Harry Watkins, were copartners doing business in Boise City under the firm name and style of Watkins-Zaspel Furniture and Carpet Company, and that on or about August 1, 1903, said partnership was dissolved; that during the continuance of said partnership the debts sued on in this action were created. The respondent sought to recover on three causes of action: The first upon an account in its favor, and the second and third upon assigned accounts. The action was brought against the appellant as sole defendant; she demurred to the complaint on the ground of defect of parties, which demurrer was confessed and the complaint was amended, making said Harry Watkins a defendant. Said writ of attachment was issued on the twenty-seventh day of May, 1904, and thereafter levied on property of the appellant. The appellant moved to discharge the attachment on the ground that the same was irregularly and improperly issued in that (1) the affidavit for attachment was made and...
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