Quirk v. Diana Mines Co., Ltd.

• Decision Date: 27 May 1921
• Citation: 34 Idaho 30,198 P. 672
• Court: Idaho Supreme Court
• Parties: P. H. QUIRK, Respondent, v. DIANA MINES COMPANY, LTD., a Corporation, IDAHO HARDWARE & PLUMBING COMPANY, LTD., a Corporation, and JOHN J. QUINN et al., Appellants

198 P. 672

34 Idaho 30

P. H. QUIRK, Respondent, v. DIANA MINES COMPANY, LTD., a Corporation, IDAHO HARDWARE & PLUMBING COMPANY, LTD., a Corporation, and JOHN J. QUINN et al., Appellants

Supreme Court of Idaho

May 27, 1921

CONSTITUTIONAL LAW-ATTACHMENTS-PROVISIONS FOR PRORATING.

1. Held, that C. S., sec. 6781, providing that any creditor who within sixty days after posting and publishing of notice of attachment shall commence and prosecute to final judgment his action for his claim against the defendant, shall share pro rata with the attaching creditor in the proceeds of defendant's property, is constitutional.

2. The purpose of posting and publishing notice of attachment is to give creditors of a defendant in an attachment action notice so that if they desire to prorate they may immediately commence and prosecute to final judgment their claims against the debtor.

3. It is the duty of plaintiff in an attachment action to inform himself as to whether or not the clerk has posted and published notice of the attachment, and to require the clerk to act in case of his failure so to do.

4. Creditors are not to be deprived of their right to prorate if they commence their actions otherwise in time, on account of the failure of the clerk to perform his statutory duty nor is the plaintiff in an attachment action entitled to any benefit resulting from such failure.

5. Posting and publication by the clerk of notice of an attachment, after the time fixed by the statute for giving notice, is not a nullity.

6. C S., sec. 6781, is construed to mean that creditors who commence their actions within the time prescribed, had the clerk performed his statutory duty, and prosecute their claims to final judgment thereafter and within sixty days after the notice is posted and published, are entitled to prorate in the proceeds of the attached property.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Judgment refusing to permit certain judgment creditors to prorate in the proceeds of attached property. Reversed and remanded.

Judgment reversed, and cause remanded. Costs awarded to appellants.

Charles M. Kahn and M. I. Church, for Appellants.

"The notice is not essential to give the writ validity and binding force. This notice is required solely in the interest of creditors of the defendant." (Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038.)

"Every statute must be construed with reference to the object intended to be accomplished by it." (36 Cyc. 1110, 1111.)

The necessity of giving the printed notice being eliminated by actual notice to the subsequent attaching creditor, in another manner, as evidenced by bringing and prosecuting to judgment, their actions at law, the noncompliance of the clerk should not now be held to affect the rights conferred upon subsequent creditors by the statute. (Eccles Lumber Co. v. Martin, 31 Utah 241, 87 P. 713.)

Where the law has given a right to one person, it cannot be destroyed by the wrongful act of another. (Sanford v. Kunkel, 30 Utah 379, 85 P. 363, 1012.)

J. R. Smead and Elliott & Healy, for Respondent.

Where a statute is uncertain and indefinite as to the method or means of its execution, it is invalid and of no force or effect. (Hettinger v. Good Road District No. 1, 19 Idaho 313, 113 P. 721; Knight v. Trigg, 16 Idaho 256, 100 P. 1060.)

Such a statute, creating as it does new rights and imposing correspondingly new liabilities, must be strictly construed. (Ahern v. Board of Directors of High Line Irr. Dist., 39 Colo. 409, 89 P. 963; Hunt v. Burns, 90 Minn. 172, 95 N.W. 1110; Smith v. Boston etc. R. Co., 99 A.D. 94, 91 N.Y.S. 412, affd. 181 N.Y. 132, 73 N.E. 679; Ohio v. Stunt, 10 Ohio St. 582.)

Among those matters as to which special legislation is prohibited are the regulation of the practice of courts of justice and the creation, extension and impairing of liens. (Const., art. 3, sec. 19.)

Sec. 6781, C. S., in attempting to create substantive rights in certain persons, discriminates against certain members of a class of persons and in favor of others of the same class. (Bear Lake County v. Budge, 9 Idaho 703, 108 Am. St. 179, 75 P. 614.)

In an attempt to take from first attaching creditors the fruits of their vigilance, the legislative body should confine itself to a classification of such persons which should include all of them and make all equally subject to the provisions of the statute. However, this was not done. (Kimball v. Raymond, 9 Idaho 176, 179, 72 P. 957.)

The prorating provisions were added to this statute in 1895, long after the original statute had been in operation as a part of a procedure which, both as to this statute and as to other statutes forming parts of the whole procedure, had always been strictly construed, and under which one seeking an attachment was required to comply specifically with the details of the legislation. (Murphy, Grant & Company v. Zaspel, 11 Idaho 145, 81 P. 301; Kerns v. McAulay, 8 Idaho 558, 69 P. 539; Gatward v. Wheeler, 10 Idaho 66, 77 P. 23; Eagleson v. Rubin, 16 Idaho 92, 100 P. 765.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

On August 9, 1917, respondent commenced an action against the Diana Mines Company, Ltd., and on the same day procured the issuance of an attachment in the action which was placed in the hands of the sheriff of Boise county and served August 10, 1917. Notice of the attachment was posted and published by the clerk on October 20, 1917. Appellant creditors, eight in number, commenced actions against the Diana Mines Company more than two days after the issuance of the writ of attachment, and recovered judgments within sixty days after the posting and publication of the notice thereof. Two of the appellants recovered judgments within sixty days after the notice should have been posted and published according to law. Appellants placed executions in the hands of the sheriff of Boise county, who had served the writ of attachment, and informed him that they claimed the right to prorate in the proceeds of the attachment. It was stipulated that the posting and publication of the notice of attachment by the clerk was without the knowledge of respondent or any representative of his, and was not acquiesced in by him then or at any subsequent time; that the failure and neglect of the clerk to post and publish the notice at the time specified by law was not known to respondent or any representative of his at the time, nor until the early part of October, 1917. The court denied appellants the right to prorate in the proceeds of the attachment. Its refusal was based upon the ground that the notice of the issuance of respondent's writ of attachment, published by the clerk on October 20, 1917, was the voluntary act of the clerk, without warrant or authority in law, and was therefore a nullity and did not afford any of appellants the right to prorate in the proceeds of respondent's attachment; and further, that the sheriff had and has no authority to determine the right of the creditors to prorate in the proceeds of respondent's writ of attachment, but is bound by the terms of the writ which had been placed in his hands, and should follow strictly the directions therein contained until such time as he may be directed or ordered to do otherwise by the judgment or order of a court of competent jurisdiction in the premises.

The statute involved...