Truax v. Title Guar. & Sur. Co.

• Decision Date: 02 February 1917
• Docket Number: 13491.
• Citation: 162 P. 586,94 Wash. 472
• Court: Washington Supreme Court
• Parties: TRUAX et al. v. TITLE GUARANTY & SURETY CO.

162 P. 586

94 Wash. 472

TRUAX et al. v. TITLE GUARANTY & SURETY CO.

No. 13491.

Supreme Court of Washington

February 2, 1917

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by A. R. Truax and another, doing business under the firm name of the Spokane Cedar Pole Company, against the Title Guaranty & Surety Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

D. W Henley, of Spokane, for appellant.

McCarthy Edge & Davis, of Spokane, for respondents.

HOLCOMB J.

In an action instituted in a district court of Bonner county, Idaho, by these respondents against four brothers, copartners under the firm name of Lazos Bros., a writ of attachment was sued out and placed in the hands of the sheriff of that county for levy upon property of the defendants there. The sheriff returned the writ, showing a seizure and taking into possession by him under the writ of certain chattels as the property of the defendants. Subsequently the defendants Lazos Bros. filed a bond in the sum of $1,500 with the appellant as surety, which was approved by the court where the action was pending, for the release of the attachment upon the chattels so seized and the redelivery thereof to the defendants. The condition of the redelivery bond was that:

'In case the plaintiffs recover judgment in said action the defendants will on demand redeliver the attached property so released to the proper officer to be applied to the payment of the judgment so obtained, or on default thereof the defendant and this surety will on demand pay to the plaintiffs the amount of the recovery in said action, together with all costs thereon, not exceeding the said sum of $1,500.00.'

The giving of such bond is provided for by the Idaho statutes (Rev. Codes Idaho, §§ 4319, 4320), upon application, on reasonable notice to the court in which the action is pending, for an order 'releasing from the operation of the attachment any or all of the property attached, and all of the property so released, and all of the proceeds of the sales thereof, must be delivered to the defendant.' The property so taken by the sheriff under attachment was, upon the execution, delivery, and approval of the redelivery bond, turned back by the sheriff to the defendants. Later the respondents obtained judgment in the district court for the recovery of the sum of $771.61, with interest at 8 per cent. from the dates of their notes sued on, $58.20 costs, and an attorney's fee of $125. Upon this judgment execution was issued, delivered to the sheriff of the county for execution, and later by him returned with the return 'nothing found.' Thereupon the sheriff, at the direction of the judgment creditiors, demanded from Lazos Bros., the judgment debtors, the return of all the property released from attachment under the redelivery bond, and the property so demanded, having been disposed of by the defendants, was not redelivered, which facts the sheriff certified. Upon the failure to redeliver the property released by the redelivery bond, this action was instituted against the surety company in the superior court of this state, resulting in a judgment against appellant upon the redelivery bond, for the amount of the total Idaho judgment, costs and attorney's fee, and the costs of this action.

The first complaint of error by appellant is based upon certain facts which it asserts under the laws of Idaho rendered the pretended levy of attachment by the Idaho Sheriff absolutely void. These facts appellant offered to prove by certified copies of public records in Bonner county, Idaho, of the existense of a certain chattel mortgage from Lazos Bros. to a bank antedating the suit and attachment, an assignment by the bank of this chattel mortgage to the National Pole Company, and also a prior bill of sale to the National Pole Company, all of which offers of evidence the trial court rejected, holding that the existence at the time of the attachment of mortgages and bills of sale on some of the property attached could not properly be urged as a defense in an action to recover on the redelivery bond. Appellant relies upon the statute of Idaho (Revised Codes Idaho, § 3411), which provides that:

'All mortgaged personal property may be attached at the suit of any creditor of the mortgagor; such creditor, however, must pay or tender to the mortgagee, the amount due him on such mortgage before the officer making such attachment is entitled to the actual possession of such property.'

It is shown that there is no evidence that the respondents, when causing their attachment to be levied in Idaho, made any tender to the mortgagee; nor did they cause to be attached only 'the equity of redemption in the mortgaged chattels' under a further clause of that statute providing that, if the attaching creditor prefers, he may cause to be attached the equity of redemption of the mortgagor, by serving upon both the mortgagor and the mortgagee a copy of the writ of attachment and a notice signed by the attaching officer that the interest of the mortgagor is attached. Decisions of the Supreme Court of Idaho are cited as holding that a substantial compliance with the provisions of the statute relating to levies of...