Ross v. Gold Ridge Mining Co.

• Decision Date: 30 April 1908
• Parties: O. B. ROSS, Appellant, v. GOLD RIDGE MINING CO., a Corporation, Respondent
• Court: Idaho Supreme Court

95 P. 821

14 Idaho 687

O. B. ROSS, Appellant, v. GOLD RIDGE MINING CO., a Corporation, Respondent

Supreme Court of Idaho

April 30, 1908

Syllabus by the Court.

The statute provides in what actions an attachment may issue, and if the complaint discloses that the action is not such, and an attachment is issued, then it was improperly issued, and upon proper motion will be dissolved.

A motion to dissolve, however, will not be turned into a demurrer. If the complaint fails to state a cause of action because the facts pleaded are defectively stated, and it appears from the complaint that a cause of action can be stayed by amendment under the ordinary rules governing amendments, then on the hearing of the motion to dissolve the amendment will be considered as having been made.

If however, the complaint states no cause of action, then a motion to dissolve the attachment on the ground that the complaint fails to state facts sufficient to constitute a cause of action will be considered and sustained.

[Ed Note.-For cases in point, see Cent. Dig. vol. 5, Attachment § 783.]

An affidavit for attachment should set forth the statutory requirements either in the language of the statute or in language of substantially the same purport or meaning.

Where the statute provides for filing an affidavit for a writ of attachment, and specifies what the affidavit shall contain it is not necessary to allege any other facts than those specified in the statute.

It is not necessary in an affidavit for an attachment to allege in unequivocal language that the debt is due. It is sufficient to allege that the defendant is indebted to the plaintiff in the sum of ___ dollars over and above all legal set-offs or counterclaims.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 280.]

An affidavit for attachment which alleges that the defendant is indebted to the plaintiff in the sum of $1,750 over and above all legal set-offs and counterclaims upon an express contract for the direct payment of money is sufficient to show that the debt is due, and that it is founded upon an express contract for the direct payment of money.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 275.]

A contract which provides, " and we further agree that after the 1st day of September, 1906, to place the said 25,000 shares of Gold Ridge mining stock for O. B. Ross at five cents a share clear to him, and if he so desires, the said 25,000 shares of stock will be placed before any other Gold Ridge mining stock is sold," is a contract for the direct payment of money, and authorizes an attachment in an action brought thereon for failure to place or sell said stock according to the terms of said agreement.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 16.]

The words " direct payment," as used in Rev. St. 1887, § 4303, means absolute, unconditional, free from intervening agencies or conditions.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 3, p. 2073.]

An undertaking for attachment which contains all the provisions and conditions required by the statute is sufficient, and the mere fact that it does not provide a penalty equal to the claim sued for does not render such undertaking void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 361.]

The statute providing for an undertaking for attachment, fixing the minimum penalty at $200, and the maximum, the amount of the claim sued for, vests a discretion in the clerk as to the amount of the bond to be required; but a failure of the clerk to require an undertaking, when the amount sued for is in excess of $200, equal to the amount sued for, is not a ground for dissolving the attachment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 362.]

APPEAL from an order of the District Court of First Judicial District for the County of Kootenai dissolving an attachment. Hon. W. W. Woods, Judge. Reversed.

Order reversed. Costs awarded to appellant.

R. E. McFarland, for Appellant.

The complaint does state facts sufficient to constitute a cause of action, and, if it did not, it could be amended. A motion to discharge an attachment does not reach defects in the complaint. (Kohler v. Agassiz, 99 Cal. 9, 33 P. 741.)

Contracts of the nature of the one in the case at bar are contracts for the direct payment of money, and writs of attachment will issue thereon. (Dunn v. Mackey, 80 Cal. 104, 22 P. 64; Santa Clara Valley Peat Fuel Co. v. Tuck, 53 Cal. 304; Kohler v. Agassiz, 90 Cal. 9, 33 P. 741; Donnelly v. Strueven, 63 Cal. 182; Flagg v. Dare, 107 Cal. 482, 40 P. 804; DeLeonis v. Etchepare, 120 Cal. 407, 52 P. 718; Coates v. Arthur, 5 S.D. 274, 58 N.W. 675.)

McClear & Burgan, for Respondent.

An affidavit for an attachment must contain an allegation in unequivocal language that the debt sued on is due before the writ of attachment should issue. (Gatward v. Wheeler, 10 Idaho 66, 77 P. 23; Kerns v. McAulay, 8 Idaho 558, 69 P. 539.)

"Where the contract does not furnish the measure of the liability of the defendant, and the damages are unliquidated, an attachment cannot be had." (Dunn v. Mackey, 80 Cal. 104, 22 P. 64; DeLeonis v. Etchepare, 120 Cal. 407, 52 P. 718.)

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

OPINION

STEWART, J.

This is an appeal from an order dissolving an attachment. It is alleged in the complaint that the appellant and respondent entered into an agreement, whereby and under the terms of which the respondent agreed that if plaintiff would take 25,000 shares of the treasury stock of the respondent corporation, and pay therefor two cents a share, the respondent would at any time after the first day of September, 1906, place said 25,000 shares of stock for plaintiff at five cents a share, clear to him; that thereupon plaintiff paid to said defendant the sum of $ 500 for said 25,000 shares of treasury stock, and defendant executed and delivered to the plaintiff the following written agreement, to wit:

"Coeur d'Alene, Idaho, July 17, 1906.

"We, the undersigned, do this day and date, sell, transfer and deliver to O. B. Ross twenty-five thousand (25,000) shares of the Gold Ridge Mining Company treasury stock at two cents a share cash in hand paid.

"And we further agree that after the first day of September, 1906, to place the said 25,000 shares of Gold Ridge Mining Stock for O. B. Ross at five cents a share clear to him and if he so desires the said 25,000 shares of stock will be placed before any other Gold Ridge stock is sold.

"GOLD RIDGE MINING COMPANY,

"By D. DAVIS, General Manager."

At the time of filing the complaint, the plaintiff filed an affidavit and undertaking for a writ of attachment. The affidavit set forth in substance the same facts alleged in the complaint and contained a copy of the agreement sued upon and set forth in the complaint. Thereafter the respondent moved the court for an order dissolving the attachment upon the following grounds:

"1. That the complaint in said action does not state facts sufficient to constitute a cause of action against said defendant. 2. That the affidavit for attachment filed in said action was and is defective and insufficient in this, that it does not state that the indebtedness mentioned in said affidavit was due at the time of the execution or filing of said affidavit or at the beginning of said action or due at all. 3. That the undertaking on attachment filed in said action is insufficient and not such an undertaking as is required by the laws of the state of Idaho. 4. That the contract declared upon in the complaint and stated in the affidavit of attachment is not a contract for the direct payment of money."

The court sustained the motion. The appeal presents three questions for review: (1) Does the complaint state facts sufficient to constitute a cause of action against defendant? (2) Was the affidavit sufficient to authorize the issuance of the writ? (3) Was the undertaking in conformity to law?

Rev. Stat., sec. 4302, provides that "The plaintiff at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached . . . . in the following cases: 1. In an action upon a judgment or upon contract, express or implied, for the direct payment of money." The statute thus provides that an attachment may issue in an action upon a judgment or upon a contract, express or implied, for the direct payment of money. If the complaint discloses that it is not such an action and an attachment issued, then it was improperly issued, and upon proper motion will be dissolved.

A motion to dissolve, however, cannot be turned into a demurrer. If the complaint fails to state a cause of action because the facts are defectively stated, and it appears from the complaint that a cause of action can be stated by amendment, under the ordinary rules governing amendments, then on the hearing of the motion to dissolve, the amendment will be considered as having been made. (Kohler v. Agassiz, 99 Cal. 9, 33 P. 741; Hathaway v. Davis, 33 Cal. 161; Hammond v. Starr, 79 Cal. 556, 21 P. 971, Hale Bros. v. Milliken, 142 Cal. 134, 75 P. 653.)

If, however, the complaint states no cause of action, then the motion to dissolve on the ground that the complaint fails to state facts sufficient to constitute a cause of action may be considered and sustained. In this case, the action seems to be based upon a written contract, and if the facts alleged are not sufficient to state a cause of action, it is apparent from the complaint itself that it can be amended by proper allegations so as to state facts sufficient to constitute a cause of action.

The second and fourth grounds of the motion go to the...