Willman v. Freidman

• Decision Date: 21 December 1893
• Citation: 35 P. 37,3 Idaho 734
• Parties: WILLMAN v. FRIEDMAN
• Court: Idaho Supreme Court

35 P. 37

3 Idaho 734

WILLMAN v. FRIEDMAN

Supreme Court of Idaho

December 21, 1893

EXECUTORY CONTRACT ON SALE OF REALTY-VENDOR'S LIEN-ATTACHMENT.-Where W. sold to F. certain real estate upon executory contract, F. going into possession, but title remaining in W. until purchase price is paid by vendee vendor has such a lien as bars him from resorting to attachment, under the statutes of Idaho, for the recovery of the unpaid portion of purchase price.

SECURED AND UNSECURED CLAIMS CANNOT BE UNITED IN ATTACHMENT SUIT.-Where plaintiff had procured by assignment, a few days prior to commencing his suit, two small claims against defendant, which claims were unsecured, the plaintiff cannot by uniting such claims with his secured claims in his complaint, secure the benefit of the attachment laws for any portion of the claims sued for.

UNDERTAKINGS ON ATTACHMENT-WHAT CLERK SHOULD REQUIRE.-The attachment law of this state vests a large discretion in the clerk of the district court in the matter of taking undertakings, and in the exercise of that discretion it is advisable that the clerk should always require an undertaking at least equal to the amount stated in the affidavit.

(Syllabus by the court.)

APPEAL from order of District Judge, Alturas County.

Affirmed, with cost to respondent.

A. F Montadon (J. J. Burt, of Counsel), for Appellant.

A copy of the cross-complaint had to be served upon the plaintiff personally within the territory or the state of Idaho; and there was no such appearance on the part of the plaintiff in such cross-action as to waive such service and confer jurisdiction upon the court as to such cross-action. (Rev. Stats., sec. 4184; Connor v. Winter, 7 Ind. 523; Lovejoy v. Robinson, 8 Ind. 400; Slayback v. Jones, 9 Ind. 470; Harris v. Rivers, 53 Ind. 216; City of Lewiston v. Booth, ante, p. 692, 34 P. 809; Heilbron v. Canal Co., 76 Cal. 15, 17 P. 933; McDougal v. McGuire, 35 Cal. 281, 95 Am. Dec. 98; Hembrook v. Stark, 53 Mo. 588; Branch of the State Bank v. Morris, 13 Iowa 136; Wagenheim v. Graham, 39 Cal. 172; Jeffreys v. Hancock, 57 Cal. 646; Hoffman v. Remnant, 72 Cal. 1, 12 P. 804; Clark v. Taylor, 91 Cal. 554, 27 P. 860.) It is not for the person objecting to show that the statutory conditions do not exist, but it is for the other side to affirmatively show that they do exist. (Earle v. McVeigh, 91 U.S. 503; Settlemeir v. Sullivan, 97 U.S. 160.) And the jurisdictional facts must appear upon the record. (Thatcher v. Powell, 6 Wheat. 119; Galpin v. Page, 18 Wall. 350; United States v. Clark, 8 Pet. 436; Pennoyer v. Neff, 95 U.S. 727; Hart v. Sansom, 110 U.S. 151, 3 S.Ct. 586.) The bringing of the original action by plaintiff was not a submission by him to the jurisdiction of the court as to anything beyond the limits of that action, and the cross-action being an original and independent action, separate and distinct from the main action, and defendant, in the cross-action, must be brought into the court as in a main action, or, at least, by a service of the cross-complaint upon him personally within the territorial jurisdiction of the state. (Idaho Rev. Stats., sec. 4188; White v. Patton, 87 Cal. 151, 25 P. 270; Vannerson v. Leveritt, 31 F. 276; Carson etc. Lumber Co. v. Holtclon, 39 F. 578; Wolcot v. Watson, 46 F. 529; Smith v. Woolfolk, 115 U.S. 143, 5 S.Ct. 1177.) Appearance must be upon the record, and under our statute is only by demurrer, answer or written notice of appearance. (Rev. Stats., sec. 4892; Harkness v. Hyde, 98 U.S. 476; S. P. Co. v. Denton, 146 U.S. 206, 13 S.Ct. 44; Roberts v. Lewis, 144 U.S. 657, 12 S.Ct. 781.)

Texas Angel, P. M. Bruner and Arthur Brown, for Respondent.

The law of this case is settled by the proceedings already had in it, which became and is known as the law of the case. When a cause has been determined in a higher court upon certain principles, those principles are supposed to continue throughout the case without re-examination as to their correctness or incorrectness. The fact that the attachment was improperly issued without foundation and without right was determined in the first adjudication in this court. The cases cited by counsel fail to touch or give any hint or color to the enormous declaration of the rights which is claimed in the brief. The case of Waugenheim v. Graham, 39 Cal. 175 et seq., is not dictum. It was laid down as law long before the adoption of the Idaho code, and when the Idaho code was adopted the construction placed upon it by this case was adopted with it.

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an appeal from an order of the district court of Alturas county discharging an attachment. The plaintiff filed his complaint in the district court, which complaint contained several causes of action, separately stated. The first cause of action, as set forth in the complaint, arose upon a promissory note made by the defendant, and (as is alleged in the complaint) "one Myers Cohn also wrote his name thereon, as surety, thus: 'Myers Cohn.'" It is further alleged, in regard to said note, "that Fred. J. Keisel & Co. indorsed the same by writing and indorsing their names on the back thereof, thus: 'Fred. J. Keisel & Co.'" Then follows, in the complaint, the allegation of three other causes of action upon three several notes for the sum of $ 900 each, executed and delivered by defendant to plaintiff, and also a further allegation of the cause of action upon a contract alleged to have been entered into by plaintiff and defendant on the fifteenth day of July, 1891, by the terms of which, it is alleged, defendant agreed to pay plaintiff the interest on the three notes mentioned in the second, third, and fourth causes of action set forth in the complaint, "and also on two other notes for $ 900 each-- one to become due May 15, 1893, and the other July 15, 1893." Then follows in said complaint, for a sixth cause of action, an allegation of an indebtedness due from defendant to the firm of Wheaton & Lurks for the sum of sixty-one dollars and thirty cents, for merchandise sold and delivered by said firm to defendant, and which claim is alleged to have been assigned to the plaintiff on May 3, 1893. Then follows another--the seventh and last cause of action alleged in the complaint-- which is a claim due from defendant to the California Powder Works, for the sum of $ 206.55. This last claim was assigned to plaintiff on May 4, 1893. This suit was commenced May 10, 1892. Affidavit for attachment was filed May 10, 1893. Undertaking on attachment was filed May 10, 1893, and writ issued on the same day. On May 16, 1893, motion to discharge attachment was made. On May 17, 1893, hearing was had, on motion to discharge attachment, before district judge at chambers, and on this same day the judge made his order discharging attachment, from which order this appeal is taken.

It will be seen from the record that only the first cause of action had accrued when the suit was instituted. The affidavit for attachment bears date May 10, 1893. Section 4302 of the Revised Statutes of Idaho provides "that the plaintiff at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached," etc. We cannot, therefore, infer that there is any mistake as to dates, and cannot refrain from admonishing attorneys to be more careful in the preparation of their appeals than is evidenced in this one. It does not appear from the record upon what papers, records, or proofs the motion to discharge attachment...