Steffy v. Teton Truck Line Co.

• Decision Date: 11 June 1932
• Docket Number: 1731
• Citation: 11 P.2d 1082,44 Wyo. 345
• Parties: STEFFY, ET AL. v. TETON TRUCK LINE CO., ET AL
• Court: Wyoming Supreme Court

11 P.2d 1082

44 Wyo. 345

STEFFY, ET AL. v. TETON TRUCK LINE CO., ET AL

No. 1731

Supreme Court of Wyoming

June 11, 1932

ERROR to District Court, Fremont County; E. H. FOURT, Judge.

Action by E. H. Steffy and E. R. Steffy, co-partners in business under the firm name of Steffy Bros. against Teton Truck Line Company. An alias attachment writ was sued out by plaintiff which was levied by the sheriff of Natrona county upon a motor truck as the property of defendant, whereupon defendant filed a motion for the dissolution of the attachment, and John Nevin filed a motion for an order directing the sheriff who made the levy, to deliver to him the property attached. To review an order dissolving the attachment, and directing that the sheriff should deliver the property to John Nevin or his attorney, plaintiffs bring error.

Affirmed.

The cause was submitted for the plaintiff in error on the brief of Mr. P. N. Gibson and Mr. Donald Spiker, of Riverton Wyoming.

The order of dissolution is a final order from which an appeal lies. Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510; First Natl. Bank v. Moorcroft Ranch Co., 5 Wyo. 50; Watson & Co. v. Sullivan, 5 O. S. 43; Harrison &amp Wiley v. King, Carey & Howe, 9 O. S. 395; Gans v. Thompson, 11 O. S. 579; Bank v. Swan, 3 Wyo. 356, 23 P. 743; Anderson v. Englehart, 18 Wyo. 196, 105 P. 571; Fitzpatrick v. Rogan, 27 Wyo. 388, 197 P. 565. In attachment a third party claimant may not intervene. Sec. 6154, W. C. S. 1920; Stanley v. Foote, 9 Wyo. 348; Risher v. Gilpin, 29 Ind. 53; Loving v. Edes, 8 Iowa 427; Thistle Mills v. Watson, 2 Pa. Co. 271; Ryan v. Goldfrank, 58 Tex. 356; Vallette v. Ky. Tr. Co., 2 Handy 1. An officer's return cannot be impeached by parol testimony. 6 C. J. 263, 6 C. J. 245; Mechanics Natl. Bank v. Miners Bank, 13 Wkly. N.C. (Pa.) 515; Angier v. Ash, 26 N.H. 99, 105; State v. Penner, 27 Minn. 269, 6 N.W. 790; Lewis v. Blair, 1 N.H. 68, 70; Perry v. Griefen, 99 Me. 420, 59 A. 601; Smith v. Wenz, 187 Mass. 421, 73 N.E. 651; Kingsbury v. Buchanan, 11 Iowa 387, 388; Wallen v. Rossman, 45 Mich. 333, 7 N.W. 901; Stinson v. Hawkens, 13 F. 833; Phillips v. Elwell, 14 O. S. 240. The officer's return is sufficient under the statute. Sec. 6122, W. C. S. 1920, Sess. Laws 1931, Ch. 73, Sec. 106, Sec. 6134, W. C. S. 1920, 6 C. J. 248; Thompson v. Eastborn, 16 N. J. L. 100.

The cause was submitted for defendant in error on the brief of Mr. Wm. B. Cobb, of Casper, Wyoming.

The officer's return on attachment was prima facie evidence only as between plaintiff below and the mortgagee. Phillips v. Elwell, et al., 14 O. S. 243. It was within the discretion of the court to hear the application of the mortgagee for possession. Bates Pl. & Pr., Vol. 1, page 417. It is often said that the actions of the officer must be such as to constitute trespass, except for the existence of the writ in his hands. Waples on Attachment and Garnishment, (2nd Ed.) Secs. 255, 283, 286, 288, 289, 300 and cases cited; also 6 C. J. 223; Sammis v. Sly, 44 N.E. 510; Root v. Rwy. Co., 45 Ohio St. 222. As to mortgagee's right to possession irrespective of the attachment see Simpson v. McFarland, (Mass.) 29 Am. Decs. 606; Green v. Coit, 90 N.E. 796; Ames v. Parrot, 86 N.W. 504; Drug Co. v. Peacock, (Minn.) 42 N.W. 298; Green v. Hooper, 167 P. 25.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This proceeding in error was instituted by the firm of Steffy Brothers to obtain review of an order of the District Court of Fremont County dissolving an attachment and directing the sheriff of Natrona County, where the writ was levied, to surrender the attached personal property to one John Nevin, who claimed it as mortgagee under condition broken of his chattel mortgage.

It appears that the firm aforesaid brought an action in the District Court above named against the Teton Truck Line Company, a corporation, to recover a balance of $ 374.08 claimed to be due upon an account for automobile merchandise and service furnished at the request of that company. An alias attachment writ was sued out by plaintiff which was levied by the sheriff of Natrona County upon a motor truck as the property of the defendant and which was valued by the appraisers selected by the sheriff at $ 2,500.

Thereafter and on June 6, 1931, the defendant filed a motion for the dissolution of this attachment which, after asserting the invalidity of the writ in several particulars, a demand by the sheriff for a discharge bond of $ 6,000 and a counter demand by the defendant upon the officer making the levy for the possession of the vehicle, which met with a refusal, then alleged:

"That long prior to the date of said purported and pretended levy of said pretended alias writ of attachment, said personal property was mortgaged and encumbered by defendant to one John Nevin, for the sum and amount of Twenty-five Hundred ($ 2500.00) Dollars; and that said chattel mortgage was duly filed in the office of the County Clerk, Ex Officio Register of Deeds in and for Natrona County, Wyoming; that the agent of said John Nevin for the foreclosure of said chattel mortgage and for the repossession of said personal property is Wm. B. Cobb, of Casper, Natrona County, Wyoming; and that demand has been made by said Wm. B. Cobb upon the Sheriff of said Natrona County, Wyoming, and upon defendant for the immediate repossession of said personal property, said demand being made under and by virtue of the expressed terms of said chattel mortgage; and that said demand has been refused by the said Sheriff and by defendant; defendant's refusal being made because of its inability to deliver possession of said personal property."

This motion was signed both by the defendant, through its president, H. B. Hughes, and by John Nevin, through his counsel. It was positively verified by Hughes' affidavit. Nevin also filed a written motion for an order directing the sheriff who made the levy as aforesaid to deliver to Nevin the property attached "for the foreclosure of a chattel mortgage. "

On June 11 following, the plaintiff filed an "affidavit in resistance of motion for dissolution of attachment" which, in so far as it referred to that part of the motion for dissolution quoted above, read:

"The allegation of the motion in so far as it relates to the mortgage of John Nevin fails to show a compliance by said John Nevin with the provisions of Section 4688 W. C. S. 1920, relating to the record of said mortgage and upon the showing made by said motion the said mortgage was wholly invalid and void as against creditors of the mortgagor and subsequent purchasers of the property without notice. The said motion therefore is defective and insufficient to show a right under said mortgage as against the Plaintiffs who allege themselves to be attaching creditors of said property for value and without notice."

This affidavit was signed and verified on belief by plaintiffs' attorney.

A hearing was had on the above described motions of the defendant and Nevin on the date last mentioned upon which the defendant presented another affidavit relating to the manner of service of the attachment writ and also oral testimony on the part of Hughes which likewise concerned the method in which the attachment writ was executed. Hughes further testified to the effect that there was due on the truck mortgage to John Nevin the sum of $ 2,500; that at the time the mortgage was executed, the truck was in Natrona County, Wyoming, and that the mortgage was placed on file in that county. Other than the affidavits and testimony aforesaid, no other evidence was apparently received at the hearing.

The order, review of which is now sought, was then made by the court, sustaining defendant's motion and dissolving the attachment. The order also directed that the sheriff who held the property under the attachment writ should deliver said property to John Nevin or his attorney.

For appellants it is contended that John Nevin, as a third party, had no right to intervene in the cause to have his right to the possession of the attached truck determined and the case of Stanley v. Foote, 9 Wyo. 335, 63 P. 940, is cited as ruling the point. In that decision, it was held that a claimant of property attached in an action between other parties could not intervene in the action for the purpose of having his rights thereto determined. This decision was rendered in 1900 upon the authority of Vallette v. Kentucky Trust Company Bank, 2 Handy 1, a decision of the Superior Court of Cincinnati made in 1855. At that time Ohio had, as it still has, in its legislation, provisions like Sections 3912 to 3914, inclusive, of Wyo. Rev. St. 1899, (§§ 4766, 4767, 4768, Wyo. Comp. St. 1910) indicating the procedure to be taken on the part of an officer when chattels seized under a writ of execution were claimed by a third person. These sections embodied the procedure referred to by Section 4025 of the Wyo. Rev. St. 1899 which subsequently became Wyo. Comp. St. 1920, § 6154, and is now Wyo. Rev. St. 1931, § 89-3338, reading:

"If personal property which has been attached be claimed by any person other than defendant, the officer shall have the validity of such claim tried; and such proceedings must be had thereon with...