State v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 20 October 1925
• Docket Number: 5813.
• Citation: State v. District Court of Tenth Judicial Dist. in and for Fergus County, 240 P. 667, 74 Mont. 355 (Mont. 1925)
• Parties: STATE ex rel. v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al. COFFEY
• Court: Montana Supreme Court

240 P. 667

74 Mont. 355

STATE ex rel.COFFEY v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 5813.

Supreme Court of Montana

October 20, 1925

Certiorari by the State, on the relation of Christine Coffey, against the District Court of the Tenth Judicial District in and for the County of Fergus and Edgar J. Baker, a Judge thereof.Proceeding dismissed.

Belden & De Kalb and Merle C. Groene, all of Lewistown, for relatrix.

Ralph J. Anderson, of Lewistown, for respondents.

HOLLOWAY J.

In March, 1922, two actions were commenced in the district court of Fergus county designated by numbers upon the register of actions 10869 and 10870.In the first action, in which Albert W. Ogg and Ralph R. Ogg were plaintiffs, and J. C. Herman and J. H. Coffey were defendants, plaintiffs sought to enforce performance of a contract for the sale of real estate; that is, they sought to compel defendants, purchasers, to accept a conveyance and to pay $3,000, the contract price for the land.In the second action, in which Albert W. Ogg alone was plaintiff, and Herman and Coffey were defendants, the same character of relief was sought, but the purchase price in that instance was $2,500.Such proceedings were had that plaintiffs in the first action recovered the judgment they sought, and in the second action Albert W. Ogg recovered the judgment he sought.From the judgment entered in the second action the defendants appealed, and by stipulation of the parties cause 10869 was to abide the decision of the Supreme Court in cause 10870.In June, 1924. this court reversed the judgment in cause 10870 and awarded the costs of appeal to defendants Herman and Coffey.71 Mont. 10, 227 P. 476.The costs, amounting to $94, were included in a cost bill duly filed in the district court, and, no objections having been made thereto, an execution was issued and placed in the hands of the sheriff of Fergus county, who undertook to levy upon and did sell all the right, title, and interest of Albert W Ogg in each of the two causes of action mentioned, for an amount sufficient to satisfy the judgment, with accruing costs, to wit, $101.20, and executed and delivered to the purchaser, Christine Coffey, a certificate of sale.Thereafter Albert W. Ogg moved the court to set aside the sale and cancel the certificate.Notice of the motion was served upon the purchaser, who appeared and contested it.Ogg also tendered to the purchaser the amount of the purchase price paid by her, and, when the tender was refused deposited the money in court for her.After a hearing the court sustained the motion, and the purchaser instituted this proceeding to have the order annulled.

When the mandate of this court in cause 10870 went down, the two actions were left pending in the district court as though a trial of either on the merits had never occurred; but the filing of the cost bill in 10870 had the effect of the entry of a judgment for $94 in favor of Herman and Coffey and against Albert W. Ogg upon which execution might issue.Section 9805, Rev. Codes;State ex rel. Hurley v. District Court,27 Mont. 40, 69 P. 244.Execution was issued and there was at least a pretended levy and sale thereunder.Several questions are presented for consideration:

(1) Was the interest of Albert W. Ogg in each of the causes of action the subject of seizure and sale in satisfaction of the judgment against him?

Section 9424, Revised Codes, provides that all property, real or personal, and any interest therein, of the judgment debtor, not exempt, is subject to seizure on execution.Causes of action are not included in the exemptions enumerated in the statute; hence if these causes of action constitute property, or an interest in property, they were liable to seizure and sale in this instance.

A cause of action is the right which a party has to institute a judicial proceeding.Dillon v. Great Northern Ry. Co.,38 Mont. 485, 100 P. 960;Johnson v. County of Lincoln,50 Mont. 253, 146 P. 471;Butte Electric Ry. Co. v. McIntyre,71 Mont. 21, 227 P. 61.If the relief sought is the recovery of money or other personal property, the cause of action is designated "a thing in action."Section 6804, Revised Codes, provides:

"A thing in action is a right to recover money or other personal property by a judicial proceeding."

This definition conforms substantially to the definition of the term as it has been recognized for centuries.In a work published in 1685, the author says:

"Thing in action is when a man hath cause or may bring an action for some duty due to him, as an action of debt upon an obligation, annuity, or rent; action of covenant or ward; trespass of goods taken away, beating or such like."Termes de la Ley, p. 141.

In the common parlance of the law, a thing in action is designated a chose in action.Chose in action means literally thing in action.Belden v. Farmers', etc., Bank,16 Cal.App. 452, 118 P. 449; 2 Blackstone's Commentaries, 397; 2 Kent's Commentaries, 351;3 Streets' Foundation of Legal Liability, p. 78.

The Supreme Court of the United States has said that a chose in action "included all debts and all claims for damages for breach of contract or for tort connected with contract."Bushnell v. Kennedy, 9 Wall. 387, 390, 19 L.Ed. 736.

While courts, text-writers, and legislators have not always distinguished sharply between the right to recover and the thing to be recovered, there cannot be any question that the right to recover is comprehended in the term "chose in action."3 Streets' Foundation of Legal Liability, p. 81.

It may be that our Code definition, above, restricts somewhat the meaning of the phrase, but since in each of the actions, 10869 and 10870, Albert W. Ogg asserted his right to recover a definite sum of money, the right so asserted is a chose in action within the meaning of our statute, and within the meaning of the phrase as employed in the authorities generally.Anciently a chose in action was denied one of the ordinary incidents of property, namely, the characteristic of transferability, but that restriction was removed many years ago.In Darlington on Personal Property, p. 9, it is said: "Choses in action having now become assignable [in the reign of Henry VII] became an important kind of personal property," and no one would have the temerity at this late day to insist that a chose in action is not property of some character.It is personal property under all of the authorities.Boyd v. Selma,96 Ala. 144, 11 So. 393, 16 L. R. A. 729;Sherwood v. Sherwood,32 Conn. 1;Buck v. Miller,147 Ind. 586, 45 N.E. 647, 47 N.E. 8, 37 L. R. A. 384, 62 Am. St. Rep. 436;Engle v. State,65 Md. 539, 5 A. 249;32 Cyc. 669;22 R. C. L. p. 66.

In Digney v. Blanchard,229 Mass. 235, 118 N.E. 250, it was held that the right to recover unliquidated damages is not such property as can be attached or taken on execution in an action at law, but is a valuable property right which can be reached and applied in a creditor's suit.The distinction there made, however, results from the local statutory provisions applicable, as appears from the decision in Wilde v. Mahaney,183 Mass. 455, 67 N.E. 337, 62 L. R. A. 813.

Since each of Albert W. Ogg's causes of action is a chose in action, and a chose in action is personal property, it follows, by the provisions of section 9424 above, that those causes of action were subject to seizure and sale in satisfaction of the judgment against him.Raymond v. Blancgrass,36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976;Nugent v. McCaffrey,33 La. Ann. 271.

(2) In what manner may the sheriff levy upon a cause of action?

That he may subject a chose in action to sale in some manner is not left open to doubt, for section 9431 declares that he must proceed against the property of the judgment debtor by levying the execution upon a sufficient amount of property, "collecting or selling the things in action, and selling the other property."Section 9424 provides that-

"Property, both real and personal, or any interest in either real or personal property, and all other property not capable of manual delivery, may be attached on execution, in like manner as upon writs of attachment."

Section 9262 provides with great particularity the manner in which the sheriff must proceed under a writ of attachment.That section comprises six subdivisions, the first two of which refer to the attachment of real property.Subdivision 3 relates to the attachment of personal property capable of manual delivery in the possession of the defendant.Subdivision 4 relates to the attachment of stocks or shares of corporations, and subdivision 6 relates to the attachment of judgments.Subdivision 5 refers to attachment of (a) debts or credits, (b) personal property not capable of manual delivery, and (c) personal property in the possession of a third person.

We may eliminate from our consideration the first and third classes.Speaking with technical strictness, a thing in action is the very antithesis of a thing in possession, and it follows that a cause of action cannot be in the possession of any one, and it goes without saying that it is not capable of manual delivery.But the person who has a cause of action has control of it; he may enforce it or may waive his right to do so, and he may transfer it to another.Subdivision 5 above then, so far as applicable to the attachment of a cause of action, provides that the officer shall execute the writ by leaving with the person having control of the property, or with his agent, a copy of the writ and a notice that the property under his control belonging to the defendant is attached in pursuance of the writ; in other words, the sheriff was required to leave a copy of the writ and the notice...