Yankton Sav. Bank v. Gutterson
| Decision Date | 01 April 1902 |
| Parties | YANKTON SAV. BANK et al. v. GUTTERSON. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Yankton county.
Action by the Yankton Savings Bank and William Hickey, as sheriff of Yankton county, against A. W. Petterson, in which plaintiffs recovered judgment. Afterwards defendant died, and G Gutterson, his administrator, was substituted by order of the court. Order dissolving an attachment obtained against Petterson's property, and plaintiffs appeal. Affirmed.
J. T Smith and French & Orvis, for appellants. R. B. Tripp, for respondent.
This is an appeal from an order vacating and dissolving an attachment. In November, 1899, the appellant the Yankton Savings Bank commenced an action on contract for the recovery of money against A. W. Petterson, and a judgment was ordered therein against him on the 22d of December. At the time of the issuing and serving of the summons, such proceedings were had that a warrant of attachment was issued against the property of the said Petterson, and his personal property, to the amount of $800 or more, was seized under the same, and taken into his possession by the sheriff of Yankton county. Said Petterson died on or about December 23, 1899. On the 23d of December an execution on said judgment was issued and placed in the hands of the sheriff, but no action seems to have been taken thereon until in February, 1900, when the same was returned, and a second execution was issued, under which the plaintiff advertised and sold the property so levied upon by him under his warrant of attachment. Upon such sale the property was sold for $890, being sufficient to satisfy the costs and expenses of sale and the amount of judgment, and leaving a balance of about $30, which was paid over to the clerk of the courts. On the 16th of January 1901, the circuit court, upon the respondent's motion, made an order substituting Gutterson, administrator, defendant in the action in the place of Petterson, deceased. Upon the following day Gutterson, as administrator, served notice upon the plaintiff bank and the sheriff of said county that he would move the court for an order dissolving the attachment, vacating and setting aside the judgment, two executions, execution sale, and returns of the officer, for reasons specified in the motion. The court, upon the hearing, made the order vacating the attachment, and denying all other relief asked for in the motion.
A number of questions are discussed in the brief of counsel, but in the view we take of the case it will only be necessary to consider the question of the effect of the death of the defendant Petterson upon the attachment, as that seems to be the only question properly before us for review on this appeal. It will be noticed that the motion was to dissolve the attachment, vacate and set aside the judgment, two executions, execution sale, and returns of the officer thereon. The order of the court is: "It is ordered and adjudged that the said motion be and is hereby granted, so far as the same relates to the said attachment, and said attachment is hereby vacated and dissolved; but said motion is denied as to all other relief asked in said administrator's notice of motion." The appellants herein excepted to so much of the order as dissolved the said attachment, and the respondent excepted to the refusal of the court to vacate and set aside the judgment, executions, returns, and sale, and each of them. The respondent has taken no appeal from that part of the order denying his motion; consequently that part of the order is not before us for review. We are of the opinion, therefore, that this court must presume that the trial court held that the summons was legally and properly served, and the judgment was properly entered, before the death of Petterson, and in discussing this case we shall assume that such was the decision of the court below, and that the court dissolved the attachment upon the sole ground that the death of Petterson had the effect of dissolving the same. In taking this view of the case it will not be necessary to notice many of the points made by counsel for respondent in his brief.
It is contended on the part of the respondent, in support of the order made by the circuit court, that, the defendant Petterson having died after the judgment in the action, the attachment proceedings were dissolved, as no execution could be issued upon the judgment; and he bases his contention upon section 5803, Comp. Laws, as it stood prior to 1901, which reads as follows: "When any judgment has been rendered for or against the testator in his lifetime, no execution shall issue thereon after his death except: *** (2) In case of the death of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon." The respondent insists that this section was taken from section 1505 of the Code of California, read in connection with section 686 of the Code of Civil Procedure of that state, and that the two sections were construed by the supreme court of California before their...
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