101 P. 596 | Idaho | 1909
This is an appeal from an order denying a motion for the dissolution of an attachment. A motion has been made to dismiss the appeal upon several grounds, the principal one being that a certificate attached to the transcript is not sufficient to show what papers were considered by the judge in considering the motion to dissolve the attachment. Before the motion to dismiss was finally submitted, a certificate from the judge who decided the matter was filed. That certificate points out specifically what papers were considered on the hearing of said motion and such papers are in the transcript. The motion to dismiss is therefore denied.
It is urged by respondent that the transcript contains the pleadings and other matter not necessary or required to appear in the transcript on this appeal. On an examination of the transcript, we find that it contains sixty-four pages, and that the complaint, answer and other matter not necessary to be contained in the transcript occupy forty pages. The transcript, therefore, contains forty pages of unneees
The only error assigned is that the court erred in overruling the appellant’s motion to’dissolve the attachment. Said motion was based upon the ground that the affidavit for the attachment was not sufficient under the provisions of subdivision 1, sec. 4303, Revised Codes of 1909, which is as follows:
“The clerk of the court must issue the writ of attachment, upon receiving an affidavit by or on behalf of the plaintiff, setting forth:
“1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal setoffs or counterclaims) and whether upon a judgment or upon a contract for the direct payment of money, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally secured, that such security has, without any act of the plaintiff, or the person to' whom the security was given, become valueless.”
The affidavit for the writ of attachment .was as follows:
“ J. O. Knutsen, being of lawful age, being first duly sworn, on oath deposes and says: That he is the plaintiff in the above-entitled action; that the defendant, William Phillips, is indebted to plaintiff in the sum of $3,069, over and above all legal setoffs or counterclaims, and that the said amount is now due from said defendant to the plaintiff upon express contracts for the direct payment of money, which is now due, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, and that the attachment is not sought and the action is not prosecuted to hinder, delay or defraud any creditor of the defendant. ’ ’
It is contended by counsel for appellant that the affidavit for attachment is insufficient and void, for the reason that it does not conform to the requirements of said provisions of the statute, in that it does not state that the indebtedness or demand “has not been secured by ... . any pledge of personal property.”
In opposition to this view, counsel for respondent has cited Glidden v. Whittier, 46 Fed. 437. In passing upon the identical question here under consideration, the court said:
“It is evident that the design of the statute is to give the creditor the privilege of securing his debt by attachment only when he has not already acquired some security by mortgage or lien upon real or personal property, or by a pledge of personal property. The important fact to be shown by his affidavit is that he has not security for his claim. A pledge of property cannot exist without its possession being placed under the control of the pledgee, and such pledge and pos*272 session give to such pledgee a lien upon such property. A lien upon personal property may exist without controlling its possession, or without its being pledged, but a pledge cannot exist without creating a lien. If the plaintiff had stated in his affidavit only that he had no security by a pledge of personal property, it would not follow that he might not have security by a lien; but the declaration that he has no lien does not negative all possibility of his having a pledge, ’ ’ and concludes that the affidavit satisfies the requirements of the statute.
In the case of O’Conor v. Witherby, 112 Cal. 38, 44 Pac. 340, the court had under consideration an undertaking that contained the following clause: “That the payment of the same has not been secured by any mortgage or lien upon real or personal property or any pledge upon personal property.” The court said:
“The statute uses the word ‘of’ instead of ‘upon.’ It is said that a pledge ‘upon’ personal property is meaningless. The intention of affiant, however, is plain, and it might properly be held a mere clerical error which would not affect its sufficiency.”
And the court further says: “If that clause of the affidavit had been omitted, we should be compelled to hold that it was sufficient. The declaration that he has no lien upon personal property negatives all possibility of his having a pledge; for if he had a pledge of personal property, he must have had a lien upon it. It was expressly so decided in Glidden v. Whittier, 46 Fed. 437.”
In that case it was not necessary for the court to pass upon the question of the words “or any pledge of personal property” from the undertaking, as the undertaking there under consideration contained those words, and the only question in that case was whether the change of the word “of” as used in the statute to “upon” vitiated the undertaking, and what the court there said in regard to the omission of the phrase “or any pledge of personal property” was dictum.
The legislature evidently had some purpose in view in requiring the affidavit to state that the debt sued for “had not
This eourt held in Ross v. Gold Ridge Mining Co., 14 Ida. 687, 95 Pac. 821, that an affidavit of attachment should set forth the statutory requirements either in the language of the statute or in language of substantially the same purport or meaning. That case is not in point here, for the reason that the affidavit in the case at bar did undertake to set forth the exact language of the statute, and failed to do so by leaving out one of the three kinds of liens mentioned therein. It did not undertake to use language of the same import or meaning.
For the reasons above given, the order of the court denying the motion to discharge the attachment must be set aside, and it is so ordered. The cause is remanded for further proceedings in accordance with the views expressed in this opinion. The appellant is entitled to all of his costs on appeal except for forty pages of unnecessary matter contained in the transcript.