43 P. 575 | Idaho | 1895
Lead Opinion
On the fifth day of March, 1893, W. II. Ridenbaugh sold to T. D. Farrer and M. J. Rounseville, of the 'firm of T. D. Farrer & Co., a stock of drugs and fixtures then being and situated in the store building of the said Ridenbaugh, 'in Boise City, Idaho, for the sum of $5,000, and delivered same to said firm. In payment for said stock, said Ridenbaugh took 'the note of said firm for said sum, and, to secure the same, took ■a chattel mortgage on said stock of drugs and fixtures in said ■store. Thereafter, on the seventh day of August, 1893, said T. D. Farrer & Co., having in the meantime paid the said W. H. Ridenbaugh the sum of $2,000, gave to said Ridenbaugh a new note for the sum of $3,332,28, and, to secure the same, gave to •said Ridenbaugh a new mortgage on said stock, described as follows, to wit: “All drugs, medicines, bottles, eases, flasks, patent medicines, chemicals, wines, liquors, cigars, tobaccos, paints, •oils, brushes, glass, varnishes, soaps, toilet articles, toilet soaps, perfumes, trusses, suspensories, sponges, syringes, catheters, rubber tubing, combs, cutlery, compasses, spectacles and all’drug sundries; soda fountain, water glasses, fixtures and apparatus; •oil; file of prescriptions, and all medicinal pharmaceutical books, ■medical and unabridged dictionaries, price lists and catalogues; ■fixtures, show cases, prescription cases, counters, shelving, •stoves, writing desks, safe, scales, stepladder, hose, signs, elec'tric light fixtures, tools, sponges, sacks, all ornamental fixtures, •chairs, printed matter, paper sacks, motors, graduates, and medicine and merchandise; and, in fact, every thing and article •owned and used in and about said store room and place above described.” A portion of the drugs and other goods, except fixtures, had been sold before foreclosure proceedings, and the money used to purchase other goods in the ordinary course of
In the case at bar, both parties concede that process good upon its face protects the sheriff even though founded on a void or irregular judgment. (See Idaho Rev. Stats., sec. 1882 (which is simply an enactment of a principle of the common law); Dusy v. Helm, 59 Cal. 188; Norcross v. Nunan, 61 Cal. 640; and many other authorities that may be cited.) Respondent contends, however, that affidavit and notice under sections 3390 and 3391 are not process, and that “process and orders,” as defined by section 1870, is the only kind of process known to our statute, and the only kind that will protect tEe officer, if fair upon its face. This definition includes, of course, attachments and executions by virtue of which goods may be levied
We must not lose sight of the fact that process fair upon its face must be executed by the sheriff, upon its being placed in his hands. We hold the affidavit and notice to be process. No objection is made by the respondent to the form of the process. Therefore the sheriff must execute it. The sheriff cannot be called upon, when he receives an execution, to sit in judgment upon the validity of the judgment. Neither can he, in this ease, be called upon to sit in judgment on the validity of the mortgage. This is for the court, and not for the sheriff.
But the attaching creditor is not without abundant and easy remedy. Section 3396 is: “The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the district court by any person interested in so doing, for which purpose an injunction may issue if necessary.” What, if any, remedy, the respondent now has it would, of course, be improper for this court to indicate. This disposes of the questions raised by the attorneys for the respondent.
The case of Jewett v. Sundback, 5 S. Dak. 111, 58 N. W. 20, is cited as an authority sustaining the respondent’s contention. That case is similar in many respects to the case at bar, and, if the same questions had been raised before that court as are raised here, it would have been an authority in point. In that case the sheriff had the goods in his possession under foreclosure proceedings when the execution was delivered to him for service, and he was directed to levy on the goods, as in this case, and he refused. The plaintiff in execution sued the sheriff. The sheriff, or his defense, introduced the mortgage, and the plaintiff, without 'objection from the defense, proceeded to show that the mortgage was void: and proof was taken, and the case decided upon that proof. The sheriff did not seek to rest his defense upon the ground that he was proceeding under a writ of foreclosure which was process fair upon its face, and which he must execute, unless commanded to desist by the court, by in
Rehearing
ON REHEARING.
The principal contention of the respondent, in his brief, was that the affidavit and notice, under the statute,is not process;and therefore the opinion deals principally with this contention. The statement that “no objection is made to the form of the process” was intended to apply to the form, simply, and not to the description of the property therein, which followed the description in the mortgage. The description is sufficient, as between the parties to the mortgage. The respondent in this ease did not avail himself of the means pointed out by the statute to contest the validity or sufficiency of the description, either in the mortgage or affidavit; and therefore, having taken no legal means to contest the same, such sufficiency was not before the court. And the court does not hold that such description is sufficient. The respondent repeats his argument as to insufficiency of description, and again quotes McConnell v. Langdon, 3 Idaho, 157, 28 Pac. 403. The court explained its position with respect to this, fully, in the original opinion, and does not think it necessary to repeat what was then said. Howard v. Clark, 43 Mo. 344, cited by respondent, states that the statute of Missouri provides a mode of settling all questions of priority between attaching creditors, and where the officer neglects these provisions, and decides the questions himself, he does so at his own peril. The case is not in point, as the sheriff in that case levied both attachments upon the same property on the same day, and thereby put himself in the position where he must decide as to priority. That is not this case. The priority in this case was with the mortgagee, as his levy was made first. He was as much a creditor as the attaching credi