Sherwood v. Porter

• Decision Date: 27 January 1938
• Docket Number: 6535
• Parties: CHARLES L. SHERWOOD, Plaintiff, v. Honorable JAMES W. PORTER, as District Judge, Defendant
• Court: Idaho Supreme Court

76 P.2d 928

58 Idaho 523

CHARLES L. SHERWOOD, Plaintiff, v. Honorable JAMES W. PORTER, as District Judge, Defendant

No. 6535

Supreme Court of Idaho

January 27, 1938

ATTACHMENT-DISCHARGE ON GIVING BOND-APPEAL-JURISDICTION OF TRIAL COURT.

1. The purpose of statutes authorizing a discharge of a writ of attachment upon the execution of an undertaking is to substitute for the attached property an adequate bond and undertaking. (I. C. A., secs. 6-532, 6-533.)

2. An "attachment" is purely statutory, and is a provisional remedy that lays hold on property of an alleged debtor by process in rem and subjects it to payment of the debt for recovery of which the action is prosecuted.

3. When an attachment is used to induce the personal appearance of an alleged debtor, after that purpose is accomplished, the case proceeds in personam and the attachment is collateral only.

4. The district court retains jurisdiction to discharge attachment upon execution of a proper undertaking, after judgment of dismissal of main action and order dissolving attachment have been entered, notwithstanding appeal by plaintiff and the filing of a supersedeas bond to continue the attachment pending appeal. (I. C. A., secs. 6-532, 6-533, 11-208.)

Original proceeding for writ of prohibition. Writ denied.

Writ denied. Costs awarded to defendant.

J. H Barnes, for Plaintiff.

"The effect of the appeal is certainly to remove from the jurisdiction of the court all question going to the correctness or validity of the order appealed from. . . . Section 946 of the Code of Civil Procedure (Note: Almost identical with our sec. 11-198) provides that 'whenever an appeal is perfected . . . . it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein.' By the appeal, the jurisdiction of the lower court in regard to all matters relating to the correctness or validity of the judgment or order appealed from is suspended, with the result that the lower court is without power to take any action in regard thereto during the pendency of the appeal." (Parkside Realty Co. v. MacDonald, 167 Cal. 342, 139 P. 805.)

"Although the jurisdiction of the cause remains in the trial court until the appeal or proceeding in error is perfected in accordance with the statutory provisions on the subject, yet as soon as that has been done the jurisdiction of the appellate court attaches, and that of the trial court ceases." (4 C. J. S. 1089, sec. 606.)

It seems to us that a mere reading of the two sections of the Code which are here controlling--11-211 and 11-208--should be sufficient to show the unsoundness of defendant's position.

This section was commented upon by this court in the case of Washington County v. Weiser Nat. Bank, 43 Idaho 618, 253 P. 838, where it is said:

"If, however, an appeal be perfected within the time prescribed by C. S., sec. 7159 (now 11-208, I. C. A.) the attachment in such case may be continued in force. The latter section provides for a stay of all proceedings in the court below whenever an appeal is duly taken, but specifically excludes from the operation of such provisions the continuance of an attachment, UNLESS an undertaking be executed by the appellant in double the amount of the debt claimed and the appeal be perfected within 20 days after the entry of the order appealed from."

Harry Benoit, for Defendant.

Attachment and garnishment are creatures of statute and the statutory provisions dealing therewith are in derogation of the common law and must be strictly construed in favor of the persons against whom they are employed. (6 C. J., Attachment, sec. 12, p. 36; 4 Am. Jur., Attachment and Garnishment, sec. 26, p. 566; American Fruit Growers v. Walmstad, 44 Idaho 786, 260 P. 168.)

It is elementary that an appeal does not deprive the trial or lower court of jurisdiction in collateral or ancillary matters, but only matters necessarily involved in the review proceedings. (3 Am. Jur., Appeal and Error, sec. 531, p. 194; 3 C. J., Appeal and Error, sec. 1385, p. 1268; Miller v. Pine Min. Co., 3 Idaho 603, 32 P. 207.)

This view is supported by the case of Roby v. Roby, 9 Idaho 371, 74 P. 757, 3 Ann. Cas. 50, where it was held that the district court retained jurisdiction in a divorce case after an appeal had been taken from the judgment of said court, to make orders directing the payment of costs and expenses necessary in the preparation and perfecting of the appeal and for attorney's fees in prosecuting the same.

AILSHIE, J. Holden, C. J., Givens and Budge, JJ., concur. MORGAN, J., Dissenting.

OPINION

AILSHIE, J.

This is a proceeding for a writ of prohibition against James W. Porter, one of the judges of the district court in and for Twin Falls county, upon the grounds that he is proceeding, and is about, to enter an order in excess of his jurisdiction. This proceeding grows out of the action entitled Charles F. Sherwood, Plaintiff, v. Thomas F. Daly and Anna B. Daly, Husband and Wife, Defendants, which case is now pending in this court on appeal.

In the case of Sherwood v. Daly, supra, a writ of attachment had been issued and certain property and credits of the defendants had been attached. A demurrer was filed to the complaint and motion was made to dissolve the attachment. After hearing on the demurrer and the motion, the trial judge entered an order sustaining the demurrer and entered judgment dismissing the action, and also entered an order dissolving the writ of attachment. The plaintiff Sherwood immediately filed and served his notice of appeal and also filed a $ 300 appeal bond and a supersedeas bond in the sum of $ 20,000, under and in conformity with the provisions of sec. 11-208, I. C. A., for the purpose of continuing in force the attachment pending the appeal.

After the appeal had been taken by the plaintiff, the defendants Daly and wife made application to the court, under the provisions of section 6-532, "for an order to discharge the attachment" and to fix the amount of bond that would be required for such purpose under the provisions of sections 6-532 and 6-533. Due notice was given and a hearing was had before Judge Porter, and thereafter he rendered a written memorandum opinion, stating that he would discharge the attachment on the filing by defendants of "a proper undertaking to be approved" by the judge. The plaintiff thereupon applied to this court for an alternative writ of prohibition which was granted, and the case has been heard on return to the alternative writ showing the facts substantially as above set forth.

Only one question arises in this case and that is: Does the district court lose jurisdiction to hear a motion and make an order, under the provisions of secs. 6-532 and 6-533, I. C. A., after an appeal has been taken from a judgment of dismissal of the main action and an order dissolving the attachment? The sections of the statute involved read as follows:

Sec. 6-532. "Whenever the defendant has appeared in the action, he may, upon reasonable notice to the plaintiff apply to the court in which the action is pending, or to the judge thereof for an order to discharge the attachment wholly or in part; and upon the execution of the undertaking mentioned in the next section, an order may be made releasing from the operation of the attachment any or all of the property attached, and all of the property so released, and all of the proceeds of the sales thereof, must be delivered to the defendant upon the justification of the sureties on the undertaking, if required by the plaintiff."

Sec. 6-533. "Before making such order the court or judge must require an undertaking on behalf of the defendant by at least two sureties, residents and freeholders or householders in the county, to the effect that in case the plaintiff recover judgment in the action defendant will, on demand, redeliver the attached property so released to the proper officer to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The court or judge making such order may fix the sum for which the undertaking must be executed, and, if necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be requested to justify before the court or judge, and the property attached can not be released from the attachment without their justification if the same be required."

Here the trial court had held that the complaint does not set forth sufficient to constitute a cause of action and that it is incapable of amendment so as to state a cause of action. The court dismissed the action and entered judgment accordingly. This automatically dissolved the attachment but the court also entered a formal order dissolving the attachment. The plaintiff, then feeling himself aggrieved, appealed from both the judgment and the order dissolving the attachment, and, desiring to continue in force his attachment lien on the property as theretofore attached, he gave the attachment supersedeas bond as required by that part of sec. 11-208, which reads as follows:

"An appeal does not continue in force an attachment unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him; that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless within twenty days after the entry of the order appealed from such appeal be perfected."

This had the effect of preserving...