Vollmer v. Spencer

• Decision Date: 06 December 1897
• Citation: 51 P. 609,5 Idaho 557
• Parties: VOLLMER v. SPENCER
• Court: Idaho Supreme Court

51 P. 609

5 Idaho 557

VOLLMER v. SPENCER

Supreme Court of Idaho

December 6, 1897

ATTACHMENT-DISSOLVING ATTACHMENT-PRACTICE ON MOTION TO DISSOLVE.-V. sued S. on two causes of action, and procured an attachment. The affidavit for attachment stated that the note upon which the second cause of action was based had not been secured by mortgage etc. On motion to dissolve the attachment, it was shown that the note sued on in the second cause of action was secured by mortgage. The trial court dissolved the attachment in toto. Held, that the writ of attachment being an entirety, and the affidavit failing to state the facts required by the statute as to the one cause of action jurisdiction to issue it did not exist, and it was properly dissolved.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed.

Forney Smith & Moore, for Appellant.

The court below having dissolved an entire attachment where two separate and distinct causes of attachment are separately and distinctly stated in the affidavit therefor, upon the traverse of one only committed a palpable error. (Drake an Attachment, sec. 101.) And if the defendant leaves one of the causes uncontested, it will sustain the attachment though all the others be nutrue. (1 Wade on Attachments, p. 136, sec. 64; Keith v. Stetter, 25 Kan. *100.) The case at bar is stronger than the Kansas case. There, there were three grounds for one of the causes of attachment, one of the grounds was untraversed, and the holding was as above shown. Here there are two separate and distinct causes of attachment, separately and distinctly stated, predicated on distinct grounds. This point needs no further comment. The error of the lower court is very palpable. A discussion of the second question in this case leads to a careful review of three of the decisions of this court, viz.: Willman v. Freidman, 3 Idaho 734, 35 P. 37; Simmons Hardware Co. v. Alturas Commercial Co., 4 Idaho 334, 39 P. 550; Wooddy v. Jamieson, 4 Idaho 448, 40 P. 61; Parberry v. Woodson Sheep Co., 18 Mont. 317, 45 P. 278.

S. S. Denning and Warren Truitt, for Respondent.

Sections 4321 and 4322 of the Revised Statutes of Idaho make special provisions for testing whether or not the writ has been improperly or irregularly issued, and then in section 4323 it is stated: "If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged." It cannot be amended because it is jurisdictional and the writ must therefore be discharged. California has a similar statute, and in Winters v. Pearson, 72 Cal. 553, 14 P. 304, it is held that an affidavit for attachment cannot be amended. The affidavit not being true in regard to one of the causes of action sued on was void, and could not sustain the attachment as to any part of the sum for which it was issued. Where the affidavit shows the ground of such attachment to be that the debt has not been secured, it is not competent to show by additional affidavits that the claim was originally secured, but such security did not exist at the time of the commencement of the action. The plaintiff who invokes the benefit of the writ must strictly comply with the requirements of the statute. If he includes a debt for which there are grounds of attachment with a debt for which there are none, he does it at his peril. We deem it unnecessary to produce any other authority to sustain this opinion than the able opinion in Willman v. Freidman, 3 Idaho 734, 35 P. 37. (Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 P. 213, 979.)

QUARLES, J. Huston, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

QUARLES, J.

The appellant, as plaintiff, sued the defendant on two separate notes, and filed an affidavit and undertaking for attachment to secure both debts, which attachment issued. Thereafter the respondent served notice of motion, based upon affidavit, to dissolve the attachment, upon the ground that the affidavit for attachment was false, in this: That it stated that the note for $ 200 (sued on in the second cause of action) had not been secured by any mortgage or lien upon real or personal property, or by any pledge of personal property, when in truth and in fact said promissory note was at the date it was made, executed, and delivered, secured by a chattel mortgage, and which motion was duly made. In support of his motion, the defendant served, and on trial introduced, his affidavit, showing that, on the date of the execution of said note, he executed and delivered to appellant a certain chattel mortgage upon three horses, one wagon and set of harness, to secure the said note, which mortgage was by the appellant duly filed for record, and recorded in Latah county, where it is still of record and unreleased. The motion was heard and sustained, and the attachment dissolved, and from the said order this appeal was taken.

On the trial of the motion, the appellant introduced a counter-affidavit (no other evidence), as follows: "Thomas H. Brewer, being first duly sworn, says: That he is the agent of the plaintiff in the above-entitled action for the purposes of this suit. That he has read the affidavit of E. J. Spencer on motion to dissolve the attachment herein, and, replying thereto, states that affiant is informed and believes from an inspection of a certain duebill, dated February 22, 1893, favor E. J. Spencer, signed by N. F. McCumber, that two of the horses described in the affidavit of the defendant herein were sold by defendant, by and with the consent of plaintiff, on or about the twenty-second day of February, 1893. And affiant further says that he is informed and believes, and so alleges the fact to be, upon his information and belief, that none of the security mentioned in the affidavit of said E. J. Spencer was held as security for the said $ 200 sued on in this action at the time said action was commenced. And affiant further says that if any part thereof was in existence, that the same had become, long prior to the institution of this action, absolutely worthless, and of no value as security whatever. And affiant further says that the wagon described in the affidavit of E. J. Spencer was, at the time of the taking of the mortgage thereon, an old worn-out wagon, but in fair repair; and that the same was thereafter used in hauling wood over the mountain roads from the home of said E. J. Spencer to Howell's Siding; and that said wagon was long ago rendered absolutely worthless, and that it was not in existence as security at the time of the commencement of this action. And affiant further says that he is informed and believes, and so alleges the fact to be, that the one set of double breeching harness referred to in the affidavit of E. J. Spencer was long ago worn out from use; that the same was old and worn out at the time the mortgage was given thereon; and that, at the time of the commencement of this action, the same did not exist as security on this $ 200 note. And affiant further says that the remaining horse described in the affidavit of E. J. Spencer--one iron-gray mare, three years old, weight nine hundred pounds--was traded off by the defendant long prior to the time of the commencement of this action, and that the same did not exist as security for the payment of the said $ 200 note at the time of the commencement of this action. Wherefore affiant avers that the said $ 200 was not secured at the time of the commencement of this action, and prays that the said attachment be not dissolved as to the said $ 200 note. [Signed] Thos. H. Brewer."

From these two affidavits it is manifest that the affidavit for attachment, so far as it relates to the second cause of action, was false, and did not comply with section 4303 of the Revised Statutes. When a mortgage has been given to secure a debt, and the creditor thereafter sues to recover debt, he must, in order to have the benefit of an attachment, state in his affidavit therefor that such mortgage was given, and "that such security has, without any act of the plaintiff," or the person to whom it was given, become valueless. In such case it is not sufficient to say the plaintiff would have been entitled to the attachment if he had stated the facts, and that the defendant was not injured by his failure so to do. The statute requires the facts to be stated, and this requirement cannot be dispensed with, without abrogating a plain provision of a statute, which cannot be done by judicial construction. But the counter-affidavit above set forth shows that the plaintiff had security. It states that the defendant "traded off" one of the horses mortgaged. If this statement is true, such trade did not destroy the lien of the mortgage, and the plaintiff could foreclose against the purchaser. The defendant below having shown that the affidavit for attachment was false as to the second cause of action, the attachment should have been dissolved as to that cause at least. Query: Should it have been dissolved as to both causes of action?

To entitle the plaintiff to an attachment, his debt must be due upon a judgment, or upon contract, express or implied, and one of three other facts must exist, viz.: The debt must have been unsecured by mortgage or lien upon real or personal property or pledge of personal property; or, if such security was given, that it has, without any act of the plaintiff become valueless; or that the defendant is a nonresident of the state. The statute requires the facts to be stated in the affidavit. In the case at bar the true condition as to the second cause of action was not stated in the affidavit; hence it was obtained contrary to law, wrongfully, and the plaintiff must not be permitted to reap any benefit from the writ. The plaintiff must...