34 P. 814 | Idaho | 1893
Plaintiff brought action against the appellants and the Coeur d’Alene Silver Lead Mining Company. The complaint alleges that on the second day of July, 1890, John Bresnaham was indebted to the plaintiff in the sum of $122.50;
This case seems to have been heard and determined as one coming under the provisions of section 4109 of the Revised Statutes of this state. That section is as follows:
“Sec. 4109. A defendant against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value, to such person as the court may direct; and the court may, in its discretion, make the order.”
The second paragraph of the complaint avers, inter alia> “that on said day [July 2, 1890] the Coeur d’Alene Silver Lead Mining Company was indebted to the said Bresnaham in the
“State of Idaho, County of Shoshone.
“[Title of Court and Cause.]
“Patrick Clark, being duly sworn, on his oath says that he is the general manager of the defendant, the Coeur d’Alene Silver Lead Mining Company. That said_ defendant is a corporation duly organized in the state of Montana under the laws thereof. That Charles F. Sears and Barger, partners under the name of Barger & Sears, without any collusion with this defendant, made a demand upon this defendant for the same fund sued upon in this action, and prior to bringing this action had caused papers in attachment to be served upon this defendant, thereby asserting that this defendant was attached as a debtor of the John Bresnaham mentioned in the complaint. That this defendant has no interest in the fund sued upon of $972.85 of the $2,200 alleged to be owing said Bresnaham, and should not be burdened with the expense of litigating about the same, and is desirous of availing itself of the provisions and benefits of section 4109 of the Revised Statutes of Idaho; and thereupon prays the court to make an order authorizing it to make deposit of said fund in court, subject to the retention by the clerk of all the costs which have accrued to this date of such order in this action.
“PATRICK CLARK.”
“Subscribed and sworn to before me, June 11, 1891. «[Seal] H. M. DAVENPORT,
“Notary Public.
“Filed June 26, 1891.”
The depositing in court by the company of the sum of $972.85 was no compliance with the provision of section 4109, as it does not appear, nor is there anything in the record upon which the assumption can be predicated, that that was the amount due from the company to Bresnaham, or that it-was the amount due from Bresnaham to Barger & Sears, and for which the latter had attached the company. There being no authority in the district court, as the case is presented by the record, to enter judgment against Barger & Sears, such judgment is reversed, and the ease remanded to the district court for further proceedings.