Union Bank & Trust Co. v. Himmelbauer

• Decision Date: 17 May 1919
• Docket Number: 4269.
• Citation: 181 P. 332,56 Mont. 82
• Parties: UNION BANK & TRUST CO. v. HIMMELBAUER et ux.
• Court: Montana Supreme Court

181 P. 332

56 Mont. 82

UNION BANK & TRUST CO. v. HIMMELBAUER et ux.

No. 4269.

Supreme Court of Montana

May 17, 1919

Appeal from District Court, Lewis and Clark County; R. Lee Word Judge.

Action by the Union Bank & Trust Company against Anton Himmelbauer and wife. From an order of the district court refusing to discharge an attachment, defendants appeal. Affirmed.

Galen Mettler & Toomey, of Helena, for appellants.

Day & Mapes, of Helena, for respondent.

BRANTLY C.J.

This is an appeal from an order of the district court of Lewis and Clark county refusing to discharge an attachment.

On December 17, 1917, Anton Himmelbauer and Mabel Himmelbauer his wife, executed and delivered to the Union Bank & Trust Company, hereafter referred to as the bank, their promissory note for the sum of $9,600, due at the end of six months, with interest at the rate of 8 per cent. per annum. To secure the payment of the note, they at the same time executed and delivered to the bank a mortgage upon certain personal property. The mortgage provided that it should also be security for any and all advancements thereafter made to Himmelbauer and wife by the bank. At different dates from January 14 to February 6, 1918, inclusive, the bank advanced various sums which, in the aggregate, amounted to $760. On April 1st the bank commenced an action to enforce the payment of a balance, alleged to be due on the note, $4,549.22, together with interest, attorney's fee, and costs. After reciting the execution and delivery of the note and the mortgage to secure its payment, the complaint alleged that the "defendants failed, neglected, and refused to pay said promissory note in accordance with the terms thereof, and that the plaintiff, acting under the power of sale contained in said chattel mortgage, did, on the 14th day of March, 1918, sell all the personal property covered by said chattel mortgage" in the manner provided therein; and thereafter, on March 30th, filed a report of the sale in the office of the county clerk and recorder. It was further alleged that certain payments had been made upon the principal sum named, at different times from December 20, 1917, to March 1, 1918, inclusive, amounting in the aggregate to $1,610.42, which had been credited thereon, together with the proceeds of the sale of the property, leaving a balance of the amount due on the note above stated unpaid, for which judgment was demanded, with interest from March 14th. The note contained no reference to the mortgage, nor any stipulation by which its payment could for any cause be accelerated, nor did the complaint contain any allegation in this behalf.

At the commencement of the action the bank procured an attachment upon filing the following affidavit by its vice president:

"In the District Court of the _____ Judicial District of the State of Montana, in and for the county of _____.

Union Bank and Trust Company, a Corporation, Plaintiff, versus Anton Himmelbauer and Mabel Himmelbauer, Defendants.

Affidavit for Attachment.

State of Montana, County of Lewis and Clark -ss.:

Frank Bogart, of lawful age, being duly sworn, says that he is an officer, to wit, the vice president of the above-named plaintiff, the plaintiff in the above-entitled action, commenced in the above-named court; that the defendants in said action are indebted to this plaintiff, above all legal counterclaims, in the sum of four thousand five hundred forty-nine 22/100 dollars, with 8 per cent. per annum interest thereon from the 14th day of March, A. D. 1918, upon an express contract for the direct payment of money now due, and that the payment of the original indebtedness was secured by a chattel mortgage upon certain personal property, all of which said property has been sold by plaintiff under said chattel mortgage, and the proceeds of said sale applied upon said indebtedness, and that the above amount is the balance due, and that the payment of said balance the same has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property, or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. Affiant further says that said attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of said defendants. Wherefore affiant asks that a writ of attachment against said defendants may be issued in said action, as allowed by law in such cases.

[Signed] Frank Bogart."

On May 11th the defendant Mabel Himmelbauer moved the court for an order discharging the attachment on the grounds (1) that the complaint did not state a cause of action, and (2) that the affidavit was insufficient to justify the issuance of the writ. Pending a hearing, the bank asked and was granted leave to amend the complaint by adding the following:

"(5) That the said chattel mortgage also provided as follows: If the said mortgagee shall at any time consider the possession of said property, or any part thereof, essential to the security of the payment of said promissory note(s), then and in such event, or in either of such events, the said mortgagee, its agent or attorney, successors or assigns, or such sheriff, shall have the right to the immediate possession of said described property, and the whole or any part thereof, and shall have the right, at its option, to take and recover such possession from any person or persons having or claiming the same, with or without suit or process, and for that purpose may enter upon any premises where the said property, or any part thereof, may be found, and may at its option regard the debt secured by the mortgage due and payable, and may thereon proceed and sell such property as above provided, and apply the proceeds of sale to the satisfaction of said debt as above provided.

(6) That on or about the 7th day of March, 1918, the plaintiff, considering the possession of the property described in the said chattel mortgage essential to the security of the payment of the said promissory note, and by virtue of the provisions of the said chattel mortgage, took immediate possession of the property described in the chattel mortgage and the whole thereof, and declared the entire debt secured by the said mortgage due and payable."

The amended pleading was filed on May 22d, whereupon the court overruled the motion.

It was entirely proper for the court to permit the complaint to be amended pending the determination of the motion. Muth v. Erwin, 14 Mont. 227, 36 P. 43; Rev. Codes, § 6589. Counsel do not contend to the contrary. They do insist, however, that the complaint as amended does not state a cause of action because it shows that the unpaid balance of the note for which judgment is demanded was not due at the time the action was commenced, and because it does not allege the facts necessary to bring the action within section 6658 of the Revised Codes. We forbear consideration of the provisions of this section, for the reason that they relate only to actions for the recovery of debts not due when the defendant is leaving, or is about to leave, the state, taking his property with him, or is disposing, or about to dispose, of it for the purpose of defrauding his creditors.

The plaintiff brought this action on the theory that under the terms of the mortgage it was authorized to take possession of the property described in the mortgage whenever it considered such possession essential to the security of the note, and at its option, to declare the note due, and that it had exercised the option, with the result that it was at liberty to enforce collection of the balance remaining unpaid after it had sold the property and given defendants credit for the proceeds. If this theory is correct, the unpaid balance of the note was an indebtedness due upon an express contract for the payment of money, to recover which plaintiff was...