Patch v. Stewart
| Decision Date | 26 January 1927 |
| Docket Number | 6041. |
| Citation | 253 P. 254,78 Mont. 192 |
| Parties | PATCH v. STEWART et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Roosevelt County; S.E. Paul, Judge.
Action by R. E. Patch against James M. Stewart, the Advance-Rumely Thresher Company, Inc., and others. Judgment against plaintiff and in favor of defendant Advance-Rumely Thresher Company, Inc., and plaintiff appeals. Affirmed.
George E. Ericson, of Poplar, for appellant.
M. J Lamb, of Billings, for respondents.
This action involves the ownership of lots 11 and 12 of block 31 of the original town site of Poplar, Roosevelt county. The cause was submitted to the court upon an agreed statement of facts. Judgment was rendered against plaintiff, and in favor of defendant Advance-Rumely Thresher Company. Plaintiff has appealed from the judgment.
Briefly stated, the facts submitted to the court are as follows: The thresher company commenced an action in the district court of Roosevelt county against James M. and Grace M. Stewart, and on May 8, 1921, filed an affidavit and undertaking on attachment therein. The affidavit recited the commencement of the action, and "that the defendants in said action are indebted to this plaintiff, above all legal counterclaims, in the sum of $502.50, with 8 per cent. per annum interest thereon from the 12th day of April, A. D. 1919, upon an express contract for the direct payment of money now due, * * * and 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 so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless," and concluded with the statutory language to the effect that the action was not prosecuted to hinder, delay, or defraud any creditor of the defendants. Thereupon a writ of attachment was issued in said cause by virtue of which the sheriff of the county, on June 8, 1921, levied upon the lots here involved. Service of summons in the action was had upon the defendants by publication, and thereafter judgment was made and given in favor of the plaintiff, upon which execution was issued and the premises were sold to the plaintiff in the action. No redemption was made from the sale, and on April 27, 1923, the sheriff executed and delivered to the thresher company a deed for the lots.
On the 30th day of January, 1922, the Cosier-Patch Company, Inc., commenced an action against James M. Stewart, in which the plaintiff, under writ of attachment issued therein, caused the lots above described to be levied upon. Thereafter, in due course, judgment was duly given and made therein in favor of the plaintiff and against the defendant James M. Stewart, upon which a writ of execution was issued, and said lots were sold by the sheriff to the plaintiff therein. No redemption having been made from the sale, a sheriff's deed was issued to the plaintiff therein on September 14, 1923. The plaintiff in this action subsequently acquired the title of the Cosier-Patch Company to the lots.
The plaintiff claims title to the lots by virtue of the last-mentioned proceedings, and the thresher company claims title under the deed issued to it by the sheriff in its action against James M. Stewart et al. It is admitted that if this deed was valid, the plaintiff cannot prevail on this appeal.
The only question presented for determination is whether the attachment proceeding in the case of the thresher company against Stewart et al. was sufficient to confer upon the court jurisdiction to render judgment therein, subjecting the property in question to sale in satisfaction of the amount due to the plaintiff therein from the defendants in the action.
Summons in that case having been served by publication, the action was one in rem. In this class of cases the jurisdiction of the court depends upon the seizure of property, or, what is, in effect, the same thing, the levy of a writ of attachment on it. Without this the court has no jurisdiction to proceed further; with it the court can proceed to subject the property levied upon to the satisfaction of plaintiff's demand. Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931. The only point made against such jurisdiction in the thresher company's suit is an alleged defect in the affidavit for attachment filed in that case, and to this matter attention will now be directed.
The statement of nonsecurity in the affidavit follows the wording of the statute (section 9257, Rev. Codes 1921), and is:
"And that the payment of the same has not been secured by any mortgage or lien upon real or personal property, * * * or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless."
The specific complaint against the validity of the affidavit is that the above statement is in the alternative and does not aver either that no security was ever given, or that security was originally given, but that the same has become valueless.
Section 538 of the California Code of Civil Procedure is identical with section 9257, supra, and the Supreme Court of that state, in passing upon the sufficiency of an affidavit similar to the one...
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