57 P. 607 | Ariz. | 1899
The question presented in this ease is the validity and effect of an attachment-lien upon the property of an attachment-debtor by reason of a partially completed attachment-levy, as against the lien created by a chattel mortgage in favor of another creditor, where the mortgage was given and placed of record after the initial steps taken for the attachment-levy, but before the completion of the levy and the consequent establishment of the attachment-lien thereunder. The appellant, the plaintiff in the lower court, had caused an at
It is not necessary to consider whether, in the absence of any adverse lien established ad interim, it would be possible-to perfect a levy by filing at this late date a paper the filing of which was a necessary prerequisite to the establishment of a lien thereunder, for this paper was filed more than a year after the chattel mortgage of the intervener, and would therefore not affect the validity of the lien that had been established, by the execution and filing of that instrument, even though it might have been considered a compliance with the statute, if it had been filed before any such adverse lien had been acquired. The issue presented to the court was the status of the property on March 24, 1897, when the chattel mortgage was placed of record. The district court held that at that time no sufficient levy of the attachment had been effected to create a lien,, and therefore the lien of the chattel mortgage attached, and secured priority. In harmony with this view are Graham v. Reno, 5 Colo. App. 330, 38 Pac. 835; Wade on Attachments, par. 126; Maskell v. Barker, 99 Cal. 642, 34 Pac. 340; Robertson v. Hoge, 83 Va. 124, 1 S. E. 669; Main v. Tappener, 43 Cal. 206; Sharp v. Baird, 43 Cal. 573; Arms v. Burt, 1 Vt. *303, 18 Am. Dec. 680; Repine v. McPherson, 2 Kan. 340; Thompson v. White, 26 Colo. 226, 54 Pac. 718. These authorities very clearly sustain the position that' there must he a strict compliance with the statutory provision to make the levy valid, and a lien upon the property; that an attachment lien does not become valid and effective and enforceable until the attachment writ is properly and completely served. The question presented on this appeal is the same that was presented on the former appeal in this case, and we cannot do better than adopt that language of this court in Snyder v. Pima County, ante, p. 41, 53 Pac. 6: “We are satisfied with the former judgment of this court upon the question presented, and see no reason for disturbing it. But even though we should now be convinced that this court had made a mistake in its former judgment, . . . yet that judgment is the law
Street, C. J., and Sloan, J., concur.