Wilson v. Barbour
| Decision Date | 06 June 1898 |
| Citation | 53 P. 315,21 Mont. 176 |
| Parties | WILSON v. BARBOUR. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; H. C. Smith Judge.
Action by Eugene T. Wilson, as receiver, etc., against Hervey Barbour. From an order denying a motion to discharge a writ of attachment, defendant appeals. Affirmed.
On August 6, 1897, the receiver of the First National Bank of Helena, Mont., filed his complaint, setting up seven causes of action arising out of a like number of express contracts for the direct payment of money, executed by the defendant to said bank. Promissory notes are the subjects of the several causes of action; the first being a note for $83.05, the second one for $31,986.50, the third one for $1,603.30, the fourth one for $19,771.31, the fifth one for $22,924.18, the sixth one for $2,860.79, and the seventh a note for $103.90. Each of the first three notes provides for attorney's fees. With attorney's fees and interest, the aggregate amount alleged to be due is $99,404.90. Summons was issued. An affidavit for attachment was filed, which, among other things, stated, in effect, that defendant was indebted to plaintiff in the sum of $99,404.90 upon the notes mentioned. Each demand was separately stated in the affidavit, in conformity with the complaint. The affidavit was sufficient in form as to each cause of action, except the sixth and seventh. As to the debts alleged in the first and second causes of action, the affidavit stated that the payment of neither had been secured by any mortgage, lien, or pledge. The debts which are the subjects of the third, fourth, and fifth causes of action were stated to have been originally secured, but that the security had, without any act of the plaintiff or the bank, become valueless. The affidavit was silent, however, with respect to whether the debts alleged in the sixth and seventh causes of action were, or had been secured. An undertaking having been given, the clerk issued a writ of attachment to the sheriff of Silver Bow county requiring him, among other things, to attach and safely keep so much of the nonexempt property of the defendant in his county as would be sufficient to satisfy the plaintiff's demands, aggregating $99,404.90. The writ recited the amounts of the several debts alleged in the complaint and affidavit each statement being separate and distinct from the others. Under the writ the sheriff attached, by garnishment, certain debts owing to, and certain credits owned by, defendant, and 5,365 shares of the capital stock of the Helena & Frisco Mining Company. On August 27, 1897, defendant gave notice of a motion to discharge the writ of attachment; the grounds being that it was improperly and irregularly issued, for the reason that the affidavit mentioned is false in its statement that the payment of the debt evidenced by the note for $31,986.50 was unsecured, and is false in stating that the security given for the payment of the $1,603.30 note had, without the act of plaintiff or of the bank, become valueless, and for the further reason that the affidavit is insufficient in that it does not allege that the notes of $2,860.79 and $103.90 had not been secured, or, if originally secured, that such security had become valueless. In support of the motion was filed the affidavit of the defendant, and this affidavit also stated that the debts which were the subjects of the sixth and seventh causes of action were secured by mortgages. On February 14, 1898, plaintiff caused to be filed in opposition to the motion an affidavit, and also many documents and letters, relating either nearly or remotely to the matters presented by the motion. On February 17th the defendant served an amendment to his notice of motion by incorporating therein an additional ground for the discharge of the writ, to wit, that the affidavit is false in stating that the payment of the indebtedness evidenced by the promissory note for $19,771.31 had never been secured, whereas that note and the one for $31,986.50 were secured by a pledge of personal property worth $70,000. To support the motion as amended, several new affidavits were filed, and plaintiff opposed the motion by counter proof in the form of affidavits and other evidence. Upon the hearing the court found all the allegations in the affidavit for attachment to be true, and that the affidavit was not sufficient to entitle the plaintiff to an attachment on the indebtedness evidenced by the notes for $2,860.79 and $103.90, the subjects of the sixth and seventh causes of action, respectively, and that the affidavit was sufficient to entitle the plaintiff to an attachment upon each of the demands except those embraced in the sixth and seventh causes of action, as to which it was silent. The court further found that, since the plaintiff had made no affidavit of attachment as to the last two causes of action mentioned, the amount of plaintiff's demand, $99,404.90, stated in the writ, and for which the sheriff was directed to attach, was too large, by the aggregate of the debts described in those two causes of action. The district judge then stated that the only question remaining was "the legal effect of the amount of the last two causes of action, for which plaintiff was not entitled to an attachment, being included in the amount for which the sheriff was directed to attach, and this case is continued for further argument upon said proposition of law." By leave of court the plaintiff then filed an amended affidavit for attachment, in which the omissions to show that the debts mentioned in causes of action numbered 6 and 7 had not been secured, or, if originally secured, that the security had become valueless, are supplied, or attempted to be supplied. The court thereupon denied the motion to discharge the writ, and the defendant appeals.
Claybury, Corbett & Gunn, for appellant.
Wm. Wallace, for respondent.
PIGOTT J. (after stating the facts).
Sections 914, 915, and 916 of the Code of Civil Procedure are as follows:
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