Wakefield & Co. v. Bell, 1664

• Decision Date: 30 December 1930
• Docket Number: 1664
• Citation: 294 P. 785,42 Wyo. 355
• Parties: WAKEFIELD & CO. v. BELL
• Court: Wyoming Supreme Court

294 P. 785

42 Wyo. 355

WAKEFIELD & CO. v. BELL

No. 1664

Supreme Court of Wyoming

December 30, 1930

APPEAL from District Court, Hot Springs County; EDGAR H. FOURT Judge.

Action by Wakefield & Co. against M. J. Bell. From an order overruling a motion to dissolve an attachment and quash the writ defendant appeals.

Affirmed.

For the appellant, there was a brief by Lin I. Noble, of Thermopolis Wyoming.

A motion to dissolve the attachment was made on the ground that no sufficient affidavit as required by 6117 C. S., was filed for the issuance of the writ, and no undertaking was filed prior to the issuance of the writ; that the so-called writ of attachment issued was not in conformity with law. The attempt to secure a writ of attachment was apparently founded on an unsecured claim. While the affidavit states that the claim is not secured by mortgage, or a lien upon real or personal property, it does not contain other exceptions in the section; namely, whether it was originally so secured, but without any act of plaintiff, the security became inadequate. The law requires that the right to the writ of attachment must be affirmatively shown in the affidavit. Rudolph v Saunders, 43 P. 619; Vollmer v. Spencer, (Ida.) 51 P. 609; Wilke v. Cohn, 54 Cal. 212; Sparks v. Bell, 70 P. 281. The writ of attachment issued herein omitted to state the amount of plaintiff's claim. This in the eyes of the law, is no writ whatever, and means nothing.

For the respondent there was a brief by C. W. Axtell, of Thermopolis, Wyoming.

We agree with the statement in appellant's brief that the case of Vollmer v. Spencer, cited by him from Idaho, is not in point here, also that the case of Wilke v. Cohn, 54 Cal. 212, is not in point, because the affidavit there was in the alternative. The form of affidavit involved in Scrivner v. Dietz, also cited, is unlike the affidavit in the present case. The affidavit in the present suit, clearly sets forth all three of the requirements of the statute, viz: that the debt is not secured by mortgage on real or personal property, or by lien on real or personal property, or by a pledge of personal property. Ch. 23, Laws 1923. The word "if" imports a condition or contingency, depending upon the happening of some event. 31 C. J. 238. "The word 'or' is a disjunctive particle that marks an alternative, generally corresponding to 'either,' as 'either this or that,' a conjunction marking distribution, an alternative or apposition." 29 C. J. 1502. The clerical error in the writ whereby the name of M. J. Bell is written instead of Five Hundred Dollars, is, of course, not ground for dissolution. The writ would be amendable. 6 C. J. 183. An application was made to the court to amend this error.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is an appeal from an order of the District Court of Hot Springs County overruling a motion to dissolve an attachment and to quash the writ under which certain property of appellant was seized.

It is contended that the court below erred in this ruling because the attachment affidavit is insufficient. That affidavit made by plaintiff's attorney, omitting the formal parts, is to the following effect:

"That the defendant is justly indebted to plaintiff in the full and just sum of Five Hundred Dollars that the cause of action sued on arises on an express contract for the direct payment of money not exceeding in amount the sum of $ 500.00 and such contract is not secured by a mortgage or lien upon real or personal property or pledge of personal property that plaintiff ought to recover of the defendant the above sum of money after allowing all just credits, counter claims or set-offs."

Section 6117, W. C. S. 1920, as amended by Chapter 23, Laws of 1923, provides, among other things, that: "In a civil action for the recovery of money the plaintiff may at or after the commencement thereof have an attachment against the property of the defendant upon the grounds herein stated: * * *

"When the cause of action sued on arises on a contract express or implied for the direct payment of money not exceeding in amount the sum of $ 500.00, and such contract is not secured by a mortgage or lien upon real or personal property, or pledge of personal property, or if originally so secured, such security has without any act of the plaintiff, or the person to whom the security was given, become inadequate to secure said contract."

Section 6118 of the same compilation directs that:

"An order of attachment...