Willman v. Friedman

• Decision Date: 17 December 1894
• Citation: 4 Idaho 209,38 P. 937
• Parties: WILLMAN v. FRIEDMAN
• Court: Idaho Supreme Court

38 P. 937

4 Idaho 209

WILLMAN v. FRIEDMAN

Supreme Court of Idaho

December 17, 1894

ATTACHMENT-CROSS-COMPLAINT.-Plaintiff sued out writ of attachment at time of filing his complaint which writ was on motion of defendant dissolved, as having been wrongfully issued. Defendant then answered original complaint, and at same time filed cross-complaint setting up claim for damages by reason of the wrongful issuance of the writ of attachment. Held, that damages arising from the wrongful issuance of the attachment were proper matter for cross-complaint.

APPEARANCE.-A party who has appeared generally by demurrer cannot afterward raise the question of a want of service.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

Judgment affirmed, with costs.

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

The following is the confused state of the California decisions Hess v. Sparks, 15 Cal. 186, holds that the interest remaining in vendor, where title has not passed, as a vendor's lien. (Query, Is the title merged?) Hill v. Grigsby, 32 Cal. 55, following in the line of Hess v. Sparks, though regretting it, holds that there is a vendor's lien where title has not passed, and dissolves an attachment. Porter v. Brooks, 35 Cal. 199, holds that a vendor's lien will not dissolve an attachment where title has passed. Gessner v. Palmateer, 89 Cal. 91, 96, 24 P. 608, 26 P. 789 holds, in the first opinion, that, where title has not passed, an assignment of the note cannot convey the title to the assignee, and that therefore the attachment should not be dissolved; and in the second opinion, that the assignment of the note does convey the title to the land, and that, therefore, the attachment should be dissolved. Hoffman v. Remnant, 72 Cal. 1, 12 P. 804, holds that where the title is reserved and all of the installments are not paid, ejectment is the proper remedy. This is opposed to the idea of a vendor's lien, because such liens do not support ejectment, but are foreclosed. Brennan v. Swasey, 16 Cal. 140, 76 Am. Dec. 507, holds that a mechanic's lien does not prevent attachment. Lankershin Ranch Land Co. v. Herberger, 82 Cal. 600, 23 P. 134, holds that attachment is proper for installments of stock. If a man brings an action for $ 500 and recovers judgment for only half of the amount the attachment issued for, the whole amount still protects him for the amount he recovers, as it justly should. Why should it not protect him here for the amount held unsecured? (Levy v. Willman, 7 Ga. 167; Danforth v. Carter, 1 Iowa 546; Dawson v. Brown, 12 Gill & J. 53; Boarman v. Patterson, 1 Gill, 372; Gross v. Goldsmith, 4 Mackey, 126; Giddens v. Bolling, 93 Ala. 92, 9 So. 427.)

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

This is an appeal from a proceeding under section 4322 of the Revised Statutes of Idaho. The appeal is ineffectual and nugatory, because it does not profess to set out what has transpired on that trial. It is no more proper to discuss the issues and the result, and the final order of discharge, than it would be to discuss the proceedings in an ordinary action of assumpsit, wherein the plaintiff had alleged an indebtedness and the defendant had denied it, and the proceedings had on the trial had been omitted, and were not reported by the bill of exceptions. A. F. Montandon makes an affidavit that the defendant is indebted to the plaintiff in the sum of $ 4,661 over and above all legal setoffs, etc., that the same is now due, and that the payment of the same is not secured by a mortgage, lien or pledge upon real or personal property. What sum? Why, the $ 4,661. It was a falsehood when it was made; it was known to be a falsehood; it was a palpable abuse of the writ of the court, issued under the pretense that there was that much due. Mr. Montandon now claims because there was $ 267 due the attachment should stand and he be allowed to ruin the business of this defendant. Having made this false affidavit that $ 4,661 was due, when he knew that there was but $ 267 due without security, a bond is provided in the magnanimous sum of $ 300 to secure the defendant against the ruin of his business and property. That bond does not conform to the statute. It follows an old California blank. The statute requires that in case the attachment be wrongfully issued, among other conditions, the plaintiff will pay all damages which he may sustain by reason of the attachment. That clause is nowhere to be found in the bond. The bond of course is but a part of the general system of fraud involved in this case. It was a fraudulent abuse from beginning to end of the process of attachment, begun with a false affidavit, followed by a bond that does not conform to the statute, and the entire property of the defendant was attached in fraud of his rights, and for the purpose of ruining him, and for no other purpose.

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

OPINION

HUSTON, C. J.

This action was originally commenced by the plaintiff to recover certain sums of money alleged to be due to him from the defendant, and evidenced by certain instruments in writing. On filing his complaint, plaintiff caused an attachment to be issued and served upon defendant, who was at the time engaged in the business of general merchandising in the town of Hailey, Alturas county, Idaho. Defendant moved the district judge for the dissolution of the attachment, upon the ground that it was wrongfully issued, which motion was allowed by the district court; and from this action of the district court an appeal was taken to this court, when the action of the lower court was affirmed, and the cause remanded for further proceedings. (See 3 Idaho 734, 35 P. 37.) Thereupon the defendant filed his answer to the complaint of the plaintiff in the district court, and at the same time filed a cross-complaint, setting up, by way of counterclaim, the wrongful issuance of the attachment aforesaid, and alleging damages by reason thereof, and asking affirmative relief therefor. Upon the filing of defendant's answer and counterclaim, plaintiff made application by petition to this court for a writ of prohibition forbidding the district court from receiving or entertaining said cross-complaint in said action, which petition was denied by this court. (See ante, p. 209, 35 P. 692.) Thereupon said cause came on for trial before said district court, with a jury, which trial resulted in a verdict and judgment in favor of defendant, from which judgment this appeal is taken.

Plaintiff filed demurrer to the cross-complaint of defendant, which was overruled by the court. Thereupon plaintiff moved to strike out the cross-complaint of defendant, which motion was refused by the court, and thereupon plaintiff filed his answer to defendant's cross-complaint. There is no assignment or specification of errors in the record or in the brief of counsel other than appears in the bill of exceptions. The contention of appellant would seem to be that the district court erred in overruling plaintiff's demurrer to the...