Hoffman v. Imes

13 Mont. 428 | Mont. | 1893

De Witt, J.

This is an appeal by defendant below from an order of the district court refusing to dissolve an attachment. The motion in the district court was made úpon several grounds, upon only one of which appellant now relies. That we will examine. Appellant’s contention was and is that the attachment should have been dissolved for the reason that the writ was not served upon him, and opportunity given to him to give a bond, or make a deposit of money, prior to the levy upon his property.

Appellant relies upon that portion of section 181, Code of Civil Procedure, as follows: “The plaintiff at the time of issuing the summons, or at any time afterwards, may have the property of the defendant not exempt from execution attached as security for the satisfaction of any judgment that may be recovered in said action, unless the defendant give good and sufficient security to secure the payment of said judgment.” His position is that the law does not allow the levy of the writ unless defendant is first given opportunity to secure ¡payment of any judgment that may be obtained by giving bond or depositing money.

The whole object of the attachment law is to obtain security for the debt claimed in the action. If the debt be already secured by a mortgage, lien, or pledge upon real or personal property (Code Civ. Proc., sec. 181), the writ of attachment cannot be issued; but if the debt be unsecured, the creditor may procure security upon the property of defendant debtor through the legal process of attachment. When this process is set in motion the sheriff is required to attach and safely keep so much property of the debtor as may be sufficient to satisfy the claims demanded, unless the defendant deposit the amount, or give the sheriff security by a good undertaking. (Code Civ. Proc., § 184.) It is not the intention of the statute that the officer shall, with this extraordinary writ in his hands, await the action of the defendant in giving security. The defendant may be absent from the jurisdiction. Other officers with other attachments may be seeking precedence in a levy. It is not to be held that the officer is to await the pleasure of an attachment debtor in giving security. On the other hand, the reasonable officer would extend all proper opportunity to the debtor to give the security contemplated by the attachment law, provided that he did not in any way jeopard the obtaining of the security through a levy upon property. The law gives the defendant the right to release the levy upon his property by giving the security at any time; but the defendant in this case, while he complains that he was not given notice that the levy was to be made, and that thereby he did not have opportunity to give security, still he is in this position that he did not at the time he discovered the levy, or at any time since, offer any security. He concedes that the issuance of the writ was regular. He asks that his property be released from a levy make upon a regular writ, and he asks this without tendering any bond or any deposit of money. The district court very properly denied his motion, and that order is hereby affirmed.

Affirmed.

Harwood, J., concurs.