189 N.W. 527 | S.D. | 1922
This action was begun to foreclose a third mortgage on real estate securing’ the payment of a promissory note of $8,000, given by defendants to plaintiff and for a deficiency judgment against defendants. It appears that the value of the mortgaged property does not exceed $9,600, and that the two prior mortgages aggregate the principal sum of $7,000, besides a large, amount of accrued interest ánd taxes.
During the pendency of the action and before trial plaintiff secured a warrant of attachment in this action, and caused defendants’ stock of hardware and fixtures to be attached. The defendants moved for a dissolution of the attachment, which the trial court denied. From such order defendants appeal. Two questions are presented.
Section 2899, Rev. Code 1919, reads:
“After such action shall be commenced, while the same is pending, no proceedings at law shall be had for the recovery of*566 the debt secured by the mortgage, or any part thereof, unless authorized by the court.”
Appellant contends that the issuance of the warrant of attachment without permission of the court violated that Section. In support thereof they cite authorities holding that the remedies of foreclosure and attachment are inconsistent concurrent remedies. They formerly were in this jurisdiction. From the time of the adoption of the Code of Civil Procedure by the Seventh 'Legislative Assembly of Dakota (Laws 1867-68, p. 1) down to the enactment of chapter 67, S. Dak. Laws 1895, an attachment could, not be issued in the equitable action of foreclosure; it could only be issued in an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property. Since 1895 an attachment has been permissible in any kind of action; the requisite grounds therefor being present. But appellants insist that the remedy by attachment comes within the clause in said section 2899., viz.:
“No proceedings at law shall be had for the recovery of the debt secured by the mortgage.”
In other words, they assert that' the remedy by attachment is a proceeding at law for the recovery of the debt. The remedy by attachment is not an independent 'action or proceeding. It is a provisional remedy; it is a proceeding ancillary to the main action. It is not a proceeding for the recovery of a debt. None of the provisional remedies are proceedings “for the recovery of a debt.” Each provisional remedy has its' special ancillary function, but the purpose of the remedy by' attachment is to sequester the attached property to await the outcome of the main action. It is perfectly clear therefore that attachment is not such a proj ceeding as comes within the bar of section 2899, supra.
Appellants’ further point is that the undertaking in attachment was insufficient in amount, and therefore there was no jurisdiction in the clerk of courts to issue the warrant. Section 2434, Rev. .Code 1919, requires the undertaking to be in a .sum at least the amount of the claim. The amount of the claim was $8,710. The undertaking was only in the sum of $2,000. Upon the hearing of the motion to dissolve the attachment, the plaintiff asked leave to file an additional and amended undertaking in the sum of $9,000, which leave was granted, and the same was di
It is urged' that attachment proceedings, being strictly statutory and in derogation of the common law, must be strictly construed, and that we should hold that the attachment should have been dissolved because it was void. We cannot so hold. We are of the opinion that the giving .of the insufficient undertaking did not go to the matter of jurisdiction of the court. Kissam v. Marshall, 10 Abb. Prac. (N. Y.) 424; Adams v. Kellogg, 63 Mich. 105, 29 N. W. 679; Schweigel v. L. A. Shakman Co., 78 Minn. 142, So N. W. 871, 81 N. W. 529; Duxbury v. Dahle, 78 Minn. 427, 81 N. W. 198, 79 Am. St. Pep. 408; Hanna v. Barrett, 39 Kan. 446, 18 Pac. 497.
We are of the opinion, that .the relief granted was well within the judicial power of the trial court as authorized by Rev. Code 19*9* §§ 2377» 2378.
The order denying a dissolution of the attachment is affirmed.