Steinfeld v. Menager

• Decision Date: 11 June 1898
• Docket Number: Civil 604
• Citation: 53 P. 495,6 Ariz. 141
• Parties: ALBERT STEINFELD, Intervener and Appellant, v. HENRY MENAGER, Plaintiff and Appellee; RICHARD FARRELL, Defendant
• Court: Arizona Supreme Court

53 P. 495

6 Ariz. 141

ALBERT STEINFELD, Intervener and Appellant, v. HENRY MENAGER, Plaintiff and Appellee; RICHARD FARRELL, Defendant

Civil No. 604

Supreme Court of Arizona

June 11, 1898

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis Judge. Reversed.

The facts are stated in the opinion.

S. M Franklin, for Appellant.

C. W Wright, for Appellee.

OPINION

DOAN J.

-- On the twentieth day of March, 1897, Henry Menager brought suit by attachment against Richard Farrell, in the district court of Pima County, to recover the sum of $2,116.42, with interest. The sheriff made a levy of this writ of attachment in the following manner upon defendant's cattle of the O I L brand, which were running at large on the range. On the day he received the writ he gave notice in his office in Tucson, in the presence of two witnesses, James N. Leevy and A. J. Preston, that he had levied on said cattle. Thereafter, on that date, March 20, 1897, he filed with the county recorder of Pima County a copy of the writ of attachment, together with a copy of his indorsement of levy; the copy of said indorsement of levy, attached to said writ of attachment, being in words and figures following, to wit: "Office of the Sheriff, County of Pima -- ss.: Under and by virtue of the within writ of attachment, I have, on this 20th day of March, 1897, levied upon all of the horned cattle of the within-named defendant, Richard Farrell, which are branded thus, O I L, and have also levied upon said brand, said brand being of record in the office of the county recorder of said Pima County, Arizona Territory, in Book 1 of Marks and Brands, on page 216 thereof; said horned cattle being estimated by me to be about 200 head in number. All of said horned cattle are running at large on a range in said Pima County, Arizona Territory, to wit, in and around Harshaw, in the southern part of said county, and cannot be herded or penned without great inconvenience and expense. Said levy was made in the presence of James Leevy and A. J. Preston, two credible persons. Done this 20th day of March, 1897, at Tucson. R. N. LEATHERWOOD, Sheriff, by W. H. TAYLOR, Deputy Sheriff. Witnesses: J. N. LEEVY, A. J. PRESTON." On the twenty-fourth day of March, 1897, and prior to the service on him of the notice of the levy of attachment by the sheriff, the defendant Farrell executed to Albert Steinfeld a promissory note for the sum of $4,128.02, due in one day from date, also a promissory note to Wheeler & Perry for the sum of $3,003.69, due one day from date, being for indebtedness due the respective payees from him on that date, and executed to Albert Steinfeld a chattel mortgage on all the cattle of said O I L brand, and on other personal property, as security for the payment of said promissory notes, which chattel mortgage, with the affidavit of the parties thereto that the same was made in good faith and without intent to defraud creditors and purchasers, was recorded in the office of the county recorder of Pima County on the said twenty-fourth day of March, 1897. Thereafter, on the said twenty-fourth day of March, 1897, the sheriff served on the defendant Farrell a notice of the levy of said attachment, which notice was in words and figures following, to wit: "Office of the Sheriff, County of Pima -- ss.: To Richard Farrell, his herder, agent, or man in charge, or to whom it may concern: This is to certify that I did, on the 20th day of March, 1897, levy upon all of the horned cattle of the said Richard Farrell which are branded thus O I L, by filing a copy of the levy, together with a copy of the writ of attachment, in the office of the recorder of said Pima County, Arizona Territory, in a case wherein Henry Menager is plaintiff and Richard Farrell is defendant. R. N. LEATHERWOOD, Sheriff, by W. H. TAYLOR, Deputy Sheriff." Steinfeld, as the owner of said chattel mortgage, thereafter filed his complaint in intervention in the attachment suit, wherein he asked the court to adjudge that the attempted levy of said writ of attachment on said cattle was void; that no lien was perfected thereby, because the requirements of the law relative to such levy were not complied with; and asked that...