Simmons Hardware Co. v. Alturas Commercial Co.

• Decision Date: 14 February 1895
• Citation: 39 P. 550,4 Idaho 334
• Parties: SIMMONS HARDWARE COMPANY v. ALTURAS COMMERCIAL COMPANY. STANDARD OIL COMPANY v. ALTURAS COMMERCIAL COMPANY
• Court: Idaho Supreme Court

39 P. 550

4 Idaho 334

SIMMONS HARDWARE COMPANY v. ALTURAS COMMERCIAL COMPANY. STANDARD OIL COMPANY v. ALTURAS COMMERCIAL COMPANY

Supreme Court of Idaho

February 14, 1895

AFFIDAVIT IN ATTACHMENT-WHEN SUFFICIENT-DEFECTS IMMATERIAL.-Where the affidavit in attachment purports to have been duly sworn to before a proper officer, and the name of the affiant appears in the commencement of the affidavit as "A. B., being duly sworn, etc.," the affidavit will be held sufficient, although the signature of the affiant does not appear thereon.

UNDERTAKING IN ATTACHMENT-MERE CLERICAL ERRORS WILL NOT VITIATE.-The purpose of the undertaking in attachment provided for in the statute is to indemnify the defendant, and where it is conclusive that this end has been served, mere clerical errors, or the omission or insertion of unimportant words will not vitiate the instrument.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

Order affirmed, with costs.

F. E Ensign, for Appellant.

Attachment proceedings cannot be amended in Idaho because the only question that can be considered by the court on motion to discharge the attachment is this, Was the writ of attachment at the time of its issuance "improperly or irregularly issued?" If at that time it was "improperly or irregularly issued" it must be discharged. (Rev. Stats secs. 4321, 4323; Babe v. Coyne, 53 Cal. 261; Winters v. Pearson, 72 Cal. 553, 14 P. 304.) An attachment is unauthorized and void unless issued in strict compliance with the provisions of the statute. (Murphy v Montandon, 3 Idaho 325, 35 Am. St. Rep. 279, 29 P. 851; Roberts v. Sandecker, 9 Cal. 262; Hisler v Carr, 34 Cal. 641; Gow v. Marshall, 90 Cal. 567, 27 P. 422; Hawley v. Delmas, 4 Cal. 195; Wilke v. Cohen, 54 Cal. 212; Merced Bank v. Morton, 58 Cal. 360; Winters v. Pearson, 72 Cal. 553, 14 P. 304.) The affidavit for attachment in said Standard Oil Company suit lacks the signature of affiant. When the affidavit is not amendable and strict compliance with the law is required that the signature is necessary. (Watt v. Carnes, 4 Heisk. 532; Cohen v. Manco, 28 Ga. 27; 2 Sand. 648; 1 Barb. Ch. 603; 1 Whittaker's Practice, 165, 166; 1 Bacon's Abridgment, 146.) The original undertaking in the Standard Oil attachment is defective because it does not give us the security the statute provides for. Under the statute we would be entitled to damages if either of the two contingencies stated in the undertaking happened. In the undertaking we would not be entitled to damages unless both happened. The substitution of "and" for "or" is fatal. (Moody v. Levy, 58 Tex. 532; 1 Wade on Attachment, sec. 56, and cases cited.) A bond is regarded as insufficient when it fails to furnish the full statutory indemnity although it may partially secure the defendant against loss. (1 Wade on Attachment, sec. 114, and cases cited.)

Selden B. Kingsbury and Johnson & Johnson, for Respondents.

"Under our statute it is the duty of the clerk of the court in which the suit is commenced to issue the writ upon the filing by the plaintiff of an affidavit stating the ultimate facts in the language of the statute, together with an undertaking, in amount and form as defined by statute. Upon such compliance with the statute, the plaintiff demands, as a right, the issuance of the writ, and, in issuing the writ, the clerk has no discretionary power. He but performs a ministerial duty in obedience to a plain statutory mandate. (Drake on Attachment, secs. 97, 98; Waples on Attachment, 108.) In considering the requisites of an affidavit for attachment, "conscientious explanations should be respected and graciously received and considered by the court, since they may give greater assurance of the truth of the affidavit than a formal following of the statute words would give." (Waples on Attachment, 97, 98.) The appellant, by its motion, objects to this affidavit that it shows that plaintiff's demand had been secured. Appellant nowhere objects that the affidavit does not sufficiently show that the demand had not been secured, and unless the affidavit shows that we have been secured the order must be affirmed. The appellant cannot now (for first time) object to the affidavit for what it does not show, but he is confined to the grounds of his motion that it does show that we were secured. "The motion must specify the grounds upon which it is made. It is not sufficient to say that it is made 'because the writ was improperly issued'; there must be a statement of the points of objection upon which the moving party will rely." (Drake on Attachment, sec. 416; 1 Wade on Attachment, sec. 292; Freeborn v. Glazer, 10 Cal. 337; Loucks v. Edmonson, 18 Cal. 203; Donnelly v. Strueven, 63 Cal. 182; Waples on Attachment, 417; Windt v. Banniza, 2 Wash. 147, 26 P. 190.) Statutory bonds and undertakings must be read in connection with the statute under which they are executed. (Matoon v. Eder, 6 Cal. 59; Russell v. Elliott, 2 Cal. 245; People v. Carpenter, 7 Cal. 402; Heynemann v. Eder, 17 Cal. 433; Billings v. Roadhouse, 5 Cal. 71; Fresno Enterprise Co. v. Allen, 67 Cal. 508, 8 P. 59.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

These cases, resting, as they do, upon similar facts, and involving the application of the same principles of law, were heard together, and will be so considered by the court. The appeal is from orders of the district court denying applications for the discharge of certain writs of attachment sued out by the plaintiffs and levied upon property of defendant. The record contains the papers upon which the motions were made, consisting of the affidavits for attachment and the undertakings in each case, the motions, and the order of the court thereon. We will consider the questions raised by the record in the order in which they were presented upon the hearing.

It is contended by appellant that the affidavit of attachment in the case of Simmons Hardware Co. v. Alturas Commercial Co. is void for the reason that it affirmatively appears therefrom that at the time the same was made the plaintiff had received from the defendant, and still held, as collateral security for the debt sued for, a pledge of personal property. Said affidavit, after the usual statements required by the statute, contains the following statement: "That after said contract was made, and said claim became payable to the plaintiff, the defendant sent to the plaintiff, as collateral security for said claim, a certain account purporting to be an account against a firm known as 'Holland & Short,' and that defendant agreed to forward in place of said claim a note of said firm of Holland & Short. That defendant has not forwarded to the plaintiff a note of said firm of Holland & Short, but instead thereof forwarded what purported to be a note signed by one W. A. Holland and J. B. Short as individuals, and that said note was taken by the defendant from the said individual Holland and Short, in pursuance of an agreement made between the said defendant and the said firm of Holland & Short, and that said claim of Holland & Short should be merged in said note (and said claim was and is merged in said note). That, in accordance with said agreement between Holland & Short and the defendant, said Holland and Short, individuals, made and executed said note, and delivered the same to the defendant, as plaintiff is informed and believes, and the said defendant sent the same to this plaintiff in order that this plaintiff might take the same in place of said claim of said firm of Holland & Short, and hold the same as collateral security, but this plaintiff is unwilling to take and accept the said note as collateral security, and has returned the same to the defendant. That the plaintiff has now no security whatever for its said claim, and that the pretended giving of security by the defendant to the plaintiff was unfairly, and, as affiant believes, fraudulently, made and attempted for the purpose of defrauding the plaintiff of any chance to secure his claim by attachment, and of defrauding plaintiff out of his said claim, and that there was never in fact any security. That this attachment is not sought, and the action is not prosecuted, to hinder, delay or defraud any creditors of the defendant." It is contended by appellant that as the affidavit admits the receipt by the plaintiff of the account or claim against Holland & Short, and does not show that the same was ever returned to the...