Stewart v. Slater
| Decision Date | 19 September 1940 |
| Docket Number | 6824 |
| Citation | 61 Idaho 628,105 P.2d 729 |
| Parties | WALTER STEWART, Doing Business Under the Firm Name and Style of STEWART LUMBER AND COAL COMPANY, Respondent, v. A. B. SLATER, J. E. MANUEL, WAYNE FLACK and C. C. TARPNING, Appellants |
| Court | Idaho Supreme Court |
ATTACHMENT-DISCHARGE-UNDERTAKING-LIABILITY OF SURETIES.
1. The statutes authorizing discharge of a writ of attachment upon the execution of an undertaking grant provisional remedies and must be substantially complied with. (I. C. A., secs 6-504, 6-532, 6-533.)
2. A bond given to sheriff to discharge writ of attachment before sheriff had completed attachment was a "statutory bond." (I. C. A., sec. 6-504.)
3. Under statute providing that, if an execution is returned unsatisfied in whole or in part, plaintiff may prosecute any undertaking given pursuant to attachment statutes, the regular issuance and return of an execution unsatisfied in whole or in part is a "condition precedent" to the maintenance of an action on an undertaking given under attachment statutes. (I. C. A., secs. 6-504, 6-530, 6-532, 6-533.)
4. The issuance and return of an execution against judgment debtor as required by statute was not a "condition precedent" to an action against sureties on bond given to discharge writ of attachment, where debtor was adjudicated a bankrupt. (I. C. A., secs. 6-504, 6-532, 6-533; Bankr. Act sec. 77B, 11 U.S. C. A., sec. 207.)
5. Failure of judgment creditor to take out execution against judgment debtor within 16 days between date of judgment and date on which debtor filed its petition in bankruptcy did not preclude creditor from urging that debtor's bankruptcy relieved him of duty of taking out execution against debtor as a "condition precedent" to action against sureties on bond given to discharge writ of attachment, since a creditor can delay taking out execution against his debtor as long as statute permits him to claim the issuance of execution without being chargeable with "laches" or subject to "estoppel." (I. C. A., secs. 6-504, 6-532, 6-533, 8-101.)
APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Isaac McDougall, Presiding Judge.
Action on bond given to prevent attachment of property under sec 6-504, I. C. A. Judgment for plaintiff. Defendants appeal. Affirmed.
Judgment affirmed with costs to respondent.
A. F. James, for Appellants.
An action cannot be maintained on an undertaking given for the release of attached property unless and until a writ of execution has been issued and returned unsatisfied.
Charles Scoggin and Fred M. Taylor, for Respondent.
An undertaking given to release property from attachment is a substitute for the attached property. (Sherwood v. Porter, 58 Idaho 523, 76 P.2d 928, 115 A. L. R. 593; Servall Automotive Service, Inc., et al., v. McDuffie, 44 Ariz. 498, 38 P.2d 655; Pue v. Wheeler, 78 Mont. 516, 255 P. 1043.)
The issuance of an execution and its return unsatisfied against a bankrupt or insolvent debtor is not a condition precedent to an action against the sureties on an undertaking for the release of attached property. (Rosenthal et al. v. Perkins et al., 123 Cal. 240, 55 P. 804; Pue v. Wheeler, supra; Passow & Sons v. United States Fidelity & Guaranty Co., 56 Cal.App. 72, 204 P. 545; Barrios & Co., Inc., v. Indemnity Insurance Co., 101 Cal.App. 675, 282 P. 386.)
Thereafter the company submitted its plan for reorganization and September 23, 1939, the court denied the petition for reorganization and adjudged the Mining and Milling Company bankrupt. Thereafter and on June 9, 1939, this action was commenced for recovery from the bondsmen the amount of the judgment previously entered against the Mining and Milling Company, and judgment was entered against the bondsmen (appellants) December 27, 1939, and this appeal is prosecuted therefrom.
No execution was ever issued and returned as provided for by sec. 6-530, I. C. A., and the only question presented on this appeal is whether issuance and return of an execution was essential to the maintenance of the action on the bond.
Our code provisions, on attachments and the procedure thereunder, are identical with the California provisions from which they were adopted by our territorial legislature in 1881 (1879-1885, Sess. Laws, secs. 318-340). The California courts have uniformly held the issuance and due return of an execution, nulla bona, is a necessary prerequisite to commencement of an action on a bond given to release property about to be attached. (Passow & Sons v. United States F. & G. Co., 177 Cal. 31, 170 P. 1124; O'Hair v. United States F. & G. Co., 9 Cal.App.2d 307, 49 P.2d 1129; Hutchinson v. United States F. & G. Co., 58 Cal.App. 573, 209 P. 249; Barrios & Co., Inc., v. Indemnity Ins. Co. of North America, 101 Cal.App. 675, 282 P. 386; Brownlee v. Riffenburg, 95 Cal. 447, 30 P. 587.)
It has also been held by the California court that, under sec. 552 of their code (identical with our sec. 6-530), the statute of limitations begins to run against a bond given under either of their code sections (540, 554 and 555, Code Civ. Proc., corresponding with our secs. 6-504, 6-532 and 6-533), immediately on the return of the execution; and that the return must be made within a "reasonable time." (O'Hair v. United States F. & G. Co., supra, and cases therein cited.)
Here the bond was taken by the sheriff under sec. 6-504 before he completed the attachment and evidently at the time he took possession of the property or was about to do so. He could not have done so after completing the attachment (Federal R. Bank v. Smith, 42 Idaho 224, 228, 244 P. 1102), and no question of that character arises here. Our attachment statutes (secs. 6-504, 6-532 and 6-533) provide for two kinds of undertaking to relieve the owner of property from having it tied up under attachment during litigation. The first method is by giving a bond to the sheriff (sec. 6-504) to prevent attachment or the completion of an attachment; and second, after an attachment has been made and returned, the court may make an order for release of the property attached upon the defendant executing and delivering an undertaking in such sum as the court requires (secs. 6-532, 6-533). These are provisional remedies (Sherwood v. Porter, 58 Idaho 523, 76 P.2d 928), and must be substantially complied with.
It is contended that the bond fixes the time and condition upon the happening of which the liability of the bondsmen becomes absolute. It provides:
"NOW THEREFORE, We the undersigned, residents and freeholders or householders within the said State of Idaho, in consideration of the premises and of the release from the said attachment of the property attached, do hereby jointly and severally undertake to the said Sheriff, R. T. Baldwin, in the sum of $ 3100.00, being an amount sufficient to satisfy plaintiff's demand, including costs, and promise to the effect that in the event said plaintiff shall recover judgment in the said action against the defendant, that such defendant and the undersigned will, on demand, pay to the plaintiff the amount of said judgment together with all costs, not exceeding in all the said sum of $ 3100.00."
It must be conceded that this bond, on its face, fixed the liability of the sureties to "pay to the plaintiff the amount of" any judgment he might "recover in the said action against the defendant." It is indisputable, however, that the bond was given and accepted under authority and in pursuance...
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