Ryan v. Maxey

• Decision Date: 29 January 1894
• Citation: 35 P. 515,14 Mont. 81
• Parties: RYAN et al. v. MAXEY et al.
• Court: Montana Supreme Court

35 P. 515

14 Mont. 81

RYAN et al. v. MAXEY et al.

Supreme Court of Montana

January 29, 1894

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Creditor's bill by Annie Ryan and others against Daniel Maxey and others on judgments against Jacob F. Speith, survivor of the firm of Speith & Krug. Judgment for defendants. Plaintiffs appeal. Affirmed.

E. P Cadwell, for appellants.

Luce & Luce, for respondents.

HARWOOD J.

Through this action, in the nature of creditor's bill, plaintiffs seek to establish and enforce judgment liens claimed by them upon certain property held and claimed to be owned by defendants. These conflicting claims arose in this wise Plaintiffs are the owners of certain judgments rendered against Jacob F. Speith, as the surviving partner of the firm of Speith & Krug, aggregating in amount about $20,000, which judgments were rendered in 1888, and are unsatisfied. Defendants are also judgment creditors of the same character that is, they own judgments recovered against said Jacob F Speith as surviving partner of Speith & Krug. It appears, however, that these defendants, in the commencement of their actions against said surviving partner, levied attachments upon all of the property of said firm available for payment of its debts, and thereafter said property was sold on executions issued to enforce the judgments and attachment liens acquired by defendants through said actions; and by virtue of such judicial sales these defendants claim title to the property in controversy in this action. Plaintiffs in this action, who obtained or succeeded to judgments against said surviving partner, but who failed to get any of the proceeds of the property of said firm in satisfaction of their judgments, now, through this action, undertake to establish what they claim to be liens on said property arising from their judgments. They maintain that said attachments, forerunning those judgments of defendants in this action, were, for certain reasons to be hereafter considered, void processes.

The processes of attachment levied upon said property in said actions of defendants against Speith, surviving partner, etc., were contested by motion to dissolve the same, which motion prevailed in the trial court; but that ruling was reversed on appeal to the supreme court, wherein it was held that such attachments would lie. See Krueger v. Speith, 8 Mont. 432, 20 P. 664; Cobb v. Speith, 8 Mont. 494, 20 P. 806; Maxey v. Speith, Id.; Bank v. Speith, 8 Mont. 495, 20 Pac. 806. So it appears that those attachments were upheld, and in due course the title now held by these defendants was acquired by sale of the attached property on execution issued upon the judgments obtained in those attachment suits.

One of the minor points urged by appellants is that those attachment liens were waived or became void because the plaintiffs in those attachment suits proceeded, after obtaining judgment, to sell the attached property under execution while the appeals from the respective orders dissolving said attachments were pending, undetermined. No authorities are cited to support this proposition, and we fail to perceive any force in it, either from analogy to other rules of waiver, or upon principle or reason. The proposition assumes that those attaching creditors, by appealing, and superseding or holding in abeyance the order of the trial court dissolving their attachments, and then prosecuting their appeals to the effect of reversing those orders, waived the rights and liens acquired through those attachments, because they proceeded to take judgment and execution in the same actions, as the law provides. It is not surprising that appellants have failed to cite any cases, or text of commentator, in support of this position.

After the decision upholding the attachment liens, cited supra, the legislature of Montana enacted an amendment to section 229 of the probate practice act, (Sess. Laws 1889, p. 146.) Appellants contended that the provisions of said statute, as amended, require that all of said partnership estate be applied to the payment of the partnership creditors "alike, and giving no preference to any, except such as are made so by mortgage pledge or lien," and that, this provision having been enacted prior to the sale of the partnership property under execution in the cases above referred to, it had the effect of so changing the law relating to those cases, while in progress, as to annul the attachment liens acquired and existing prior to the passage of that amendment, and that the sale of said property under execution was void as in contravention of that statute. We do not think appellants' view can be maintained. It would give the statute under consideration the retroactive effect of abrogating the liens lawfully acquired by attachment, and existing when the present statute was...