235 P. 767 | Mont. | 1925
The interest of a conditional vendor is one which may be levied upon. (Escobar v. Rogers,
The text-books seem to indicate clearly that trover does not lie except for the conversion of specific tangible property. (38 Cyc. 2011, 12, 15; 26 R.C.L. 1101, 1102; 1 Chitty on Pleading, p. 169; Salem L. T. Co. v. Anson,
The third-party claim statute has no application to a case where chattels are not taken or given into the possession of the attaching officer, or, in the case of a debt, paid to him, and the remedy of a third party who makes claim to the property or fund levied on is by intervention in the attachment suit, unless there is an interpleader by the garnishee which brings him in to establish his claim, or by action against the garnishee. (Maier
v. Freeman,
The two questions presented are: (1) Had the title to the separator passed from Tanaka to Englehart before the writ of attachment was levied on December 4; and (2) was there a conversion of the property by the sheriff?
1. The contract did not evidence a sale of the separator to[1] Englehart. It was only an executory agreement to sell (State ex rel. Malin-Yates Co. v. Justice of the Peace Court,
Defendant has failed to have the transcript printed as[2] required by subdivision 1, Rule VI, of the Rules of this court, and is not entitled to have the evidence considered; nevertheless we have reviewed it, but no useful purpose would be served in setting forth even a brief summary. The evidence is in sharp conflict and not as satisfactory as it might be, but the jury found that Englehart was the owner of the separator and the debt due from Makino and Nakimura at the time the writ of attachment was levied, and we think the evidence sufficient to justify the finding. *143
2. In making the levy the sheriff proceeded upon the[3] assumption that the separator was in the actual possession of Makino and Nakimura, and for the purposes of this appeal we accept that theory as correct. Our statute makes no distinction between property actually seized by the sheriff under a writ of attachment and property attached by service of a copy of the writ upon and notice to the person in possession. The two methods of making the levy are different, but the result is the same — the property is attached, and is conserved for final execution after the action has proceeded to judgment.
Section 9276, Revised Codes, provides: "If judgment be recovered by plaintiff [in the attachment action], the sheriff must satisfy the same out of the property attached by him,"etc. (Moreland v. Monarch Mining Co.,
It is settled in this jurisdiction, and elsewhere generally, that the attachment of one person's property to satisfy a claim against another is a conversion of the property (Western MiningSupply Co. v. Quinn,
But it is urged earnestly that there was not a conversion of[5] the debt due from Makino and Nakimura, and decided cases are cited which seem to sustain the contention, but they follow the ancient rule of the common law, and are opposed to the great weight of modern authority. In 26 R.C.L. 1099, it is said: "At common law, trover lay only for tangible property, capable of being identified and taken into actual possession, but the fiction on which the action of trover was founded, namely, that a defendant had found the property of another, which was lost, has become, in the progress of law, an unmeaning thing, which has been discarded by most courts; so that the action no longer exists as it did at common law, but has been developed into a remedy for the conversion of every species of personal property." (See, also, Payne v. Elliot,
Section 9256, Revised Codes, provides that the plaintiff may have the property of the defendant attached "as security for the satisfaction of any judgment that may be recovered."
Section 9260 provides that the writ shall be directed to the sheriff and shall require him "to attach and safely keep all the property of such defendant within his county not exempt from execution," etc.
Section 9261 provides: "The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits thereon, and all debts due such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution."
Section 9262 provides the different methods for making the levy, and subdivision 5 thereof reads as follows: "Debts or credits and personal property, not capable of manual delivery, and personal property in the possession of a third person, must be attached by leaving with the person owing such debt, or having in his possession or under his control such credits and *145 personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ."
It must be accepted, then, that the debt due from Makino and Nakimura was "property" within the meaning of our attachment statute, and that it was attached by the sheriff in the action by MacKay against Tanaka. If the money had been paid over to the sheriff, as it might have been (sec. 9267), there could not be any question that the detention of Englehart's money to satisfy a claim against Tanaka would have constituted a conversion. The result, however, so far as Englehart was concerned, was the same. Makino and Nakimura were liable to MacKay for the amount of the debt if it were in fact due to Tanaka (sec. 9267), and they could not pay it over to Englehart with safety until the question of its ownership was determined. While they might have paid it over to the sheriff as indicated above, or they might have interpleaded and paid it into court, in neither event would Englehart have been benefited. It was the act of the sheriff in levying upon the debt which operated to impound it and in effect to place it in the custody of the law and beyond the control of its owner. (Hagan v. Lucas, 10 Pet. 400,
The fact that Englehart might have pursued other remedies does[6] not impair his right to maintain this action. InMoreland v. Monarch Mining Co., above, we said: "While it is true that the seizure, or even the sale, of A.'s property for B.'s debt does not affect the title of the true owner who may proceed under section 6673, Revised Codes [section 9273, Rev. Codes 1921], or have his appropriate remedy in conversion or replevin, he is not required to pursue any of these courses, and the fact that he has an alternative remedy does not reflect upon his right to intervene." The converse is equally true: The fact that he might have intervened in the MacKay v. Tanaka action is no reason for denying to him the right to prosecute this action for damages for conversion. Indeed, the very provision of section 9273 under which MacKay gave to the sheriff an indemnity bond presupposes that the sheriff may be liable to the third party claimant for damages for retaining the property.
The judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, STARK and MATTHEWS concur.
Rehearing denied April 25, 1925. *147