244 P. 488 | Mont. | 1926
The plaintiff, on June 26, 1925, obtained a judgment by default against the defendant for the sum of $4,699.85 and costs. Upon the application of defendant the court, on September 28, 1925, entered an order setting aside the default and vacating the judgment. After the entry of this order, and on the same day, the plaintiff sought to avail himself of the ancillary remedy of attachment to secure the amount he claimed to be due him from the defendant; to that end he filed in the action affidavit for attachment in which he set forth that the defendant was then indebted to him in the sum of $4,699.85, and the statutory undertaking. The writ issued and pursuant to it the sheriff, on the same day, attached approximately 9,204 acres of land standing on the records of Blaine county in the name of the defendant. The levy has never been released. On October 22 the plaintiff filed notice of appeal from the order of the court made on September 28, 1925, "granting the motion of the defendant to open the default and set aside the judgment," and in due time filed transcript and briefs with the clerk of the court. The defendant has moved to dismiss the appeal, the motion having *514 been served on the attorney for plaintiff upon February 10, 1926. The plaintiff has not filed any resistance to the motion.
In a proper case "the plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered," etc. (Sec. 9256, Rev. Codes 1921.) As will be noted the foregoing section presupposes that attachment proceedings must be prior to judgment, and this presupposition the entire chapter relating to attachments confirms.
Judgment having been entered and still being in effect, attachment will not lie. There being a judgment, execution will issue pursuant to which a levy upon the defendant's property may be made, sale following. If an attachment exists at the time of[1] judgment in favor of the attaching creditor, it becomes merged in the judgment. (Bagley v. Ward,
From the date the writ of attachment is levied the property seized is impressed with a lien (sec. 9288, Rev. Codes 1921) which continues in force until judgment, and if the judgment is in favor of the party procuring the attachment, the property is subject to sale in satisfaction of the judgment (sec. 9276, Rev. Codes 1921; Moreland v. Monarch Min. Co.,
A judgment is itself a lien on the nonexempt property of the debtor in the county or counties wherever the judgment is docketed (Rockefeller v. Dellinger,
To sum up, under our statutes, attachment may not issue upon a[2] cause of action which has ripened into judgment. Plaintiff cannot be permitted to maintain the judgment and at the same time to sue out a writ of attachment upon the cause of action upon which the judgment is based. When he sued out the writ he conceded, or will be held to have conceded, that the judgment no longer had any existence. Otherwise, if on appeal the action of the trial court were declared erroneous and the judgment declared valid, we should have an attachment in clear violation of statutory provisions.
In Parr v. Webb,
When the plaintiff availed himself of the remedy of attachment, which he could not have had, the judgment existing, he must be held to have accepted the benefit of the order which set aside the judgment.
The appeal is dismissed.
Dismissed.
ASSOCIATE JUSTICES HOLLOWAY, GALEN, STARK and MATTHEWS concur. *516