35 Am. St. Rep. 279 | Idaho | 1892
Lead Opinion
John Murphy brought suit against .Edwin S. Bartsch. To secure a lien upon property, the plaintiff therein procured an attachment, and levied upon the property of the defendant, Bartsch. To procure said attachment the plaintiff, Murphy, filed an affidavit, stating, among other things, “that the payment of the debt had not been secured by any mortgage lien or pledge on real or personal property.” To release said attachment, the defendants in the present suit, A. F. Montandon and Ernest Cramer, on the tenth day of August, 1887, gave their bond in the sum of $1,250, conditioned to pay such judgment as the said Murphy should secure against said Bartsch. Upon giving this bond the attachment was released. In the trial of the principal cause, judgment was given for the plaintiff, Murphy, against the defendant, Bartsch, for the sum of $715 damages and $34.25 costs. Upon ■this judgment the sum of $379.75 was paid, leaving the sum ■of $412.40 still due. To recover this sum suit is brought upon' the bond of Montandon and Cramer. Montandon only being served with process, judgment was rendered against him. Motion for new trial was made and overruled, and defendants appeal to this court.
On the trial of the principal cause the court made the following finding of fact, being the fourth: “That at the date of said note [being the note given by the defendant, Bartsch, to the plaintiff, Murphy] one T. B. Shaw was indebted to the defendant [Bartsch] on account for goods sold in the sum of $528.05, and, being so indebted, duly accepted an order drawn on him by the defendant [Bartsch] for the amount in favor of this plaintiff, and that the defendant, as collateral security, delivered the same to the plaintiff.” This order was precisely the same as a draft drawn by Bartsch upon Shaw and accepted by him. It is a chose in action, an evidence of debt, and was, therefore, personal property, under section 16, ■subdivision 3 of the Bevised Statutes of Idaho^ and was a pledge of personal property to secure the debt of Murphy. This pledge being placed in the hands of Murphy, the presumption is that it still remained in his hands as such security at the time he filed his affidavit for the attachment. This presumption should have been overcome by the statement in his affi
Rehearing
ON REHEARING.
The plaintiff files motion for rehearing in this case, and cites, as an additional authority, Harvey v. Foster, 64 Cal. 296, 30 Pac. 849, in support of his contention that the obligors in the bond cannot be heard to plead that the attachment was issued upon a false or insufficient affidavit. In that case, however, there was no bond given for the release of the property from the lien of the attachment. The contention was between the attaching creditor and a mortgagee of the property levied on for the amount realized from the sale of the property in excess of the amount necessary to discharge the mortgage decree, the attaching creditor claiming it to satisfy his judgment, and the mortgagee, Kraft, claiming it to satisfy a promissory note which he held against the judgment debtor, defendant in the original suit. The cases are not parallel. There was no privity of interest between the attaching creditor and the mortgagee. The latter had no interest whatever in the original suit, and had no rights or obligations growing out of
Barry v. Foyles, 1 Pet. 315: In this ease the court say: “After the defendant has appeared and [pleaded] answered, no reference can be made to the attachment proceedings, and the
Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dec. 350, and note: In this ease the defendant was on the bond with his sureties, •and the court held that when attachment was issued the defendant had the opportunity of contesting all proceedings to procure •attachment. After answer, he could not question the regularity •of attachment proceedings.
In Voorhees v. Bank, 10 Pet. 473, land was sold and conveyed after judgment obtained by attachment proceedings. The court holds: “When ejectment was brought upon this title, the original judgment is conclusively presumed to be regular, and cannot be questioned in this collateral proceeding.” If defendant in the original action neglects the method pointed out by law to remedy errors (by appeal), he cannot do so in a ■collateral proceeding. This ease is not similar to the case at bar.
Holding a contrary doctrine, we find, among others, the following cases: In Homan v. Brinckerhoff, 1 Denio, 184, attachment was issued upon giving a bond which in its conditions was faulty, and did not comply with the statute. Attachment was levied upon property. Bond was given to release the property. Suit was brought upon the bond, judgment in original suit being given, and not paid. Held, the justice, by reason of defective bond, did not acquire jurisdiction to issue the attachment. The court say: “The court obtained jurisdiction in the ■attachment suit when the defendant Davis appeared and pleaded to the declaration. Judgment was therefore valid. But that will not aid the plaintiff. He did not hold the property under the judgment, no execution having been levied upon it. Although the plaintiff had got a valid judgment, he had no other hold upon the property than such as the attachment gave him, •and that was utterly void for want of jurisdiction to issue it.” In Whiley v. Sherman, 3 Denio, 185, the above ease -is commented upon and approved as to above point; decision rendered