228 P. 80 | Mont. | 1924
Lead Opinion
delivered the opinion of the court.
The plaintiff commenced this action in the county of Lewis and Clark upon a promissory note in the sum of $11,674, signed “The First National Bank, Poplar, Montana, Otto Ramstad, Cashier.”
The allegations of the amended complaint are that plaintiff and defendant are both national banking corporations, doing business under the banking laws of the United States, and that the note was executed and delivered by defendant to the plaintiff. On the day the original complaint was filed there was also filed an affidavit for attachment, sworn to by the vice-president, of the plaintiff bank, and a writ of attachment, which commanded the sheriff of Roosevelt county to attach and safely keep enough of the defendant’s property within that county to satisfy plaintiff’s demand. The return of the sheriff recites that he received the writ on December 18, 1922, and personally served it by delivering a copy thereof to J. C. Dwyer, the county clerk of Roosevelt county, and levying upon and attaching the real property described therein.
The defendant appeared by answer, and, after the plaintiff had filed its reply thereto, it moved the court to discharge the attachment and to set aside and annul the levy, upon the ground that the attachment was irregularly and improperly issued, in that, under the provisions of section 9834 of the United States Compiled Statutes of 1916, no attachment could issue from a state court before judgment, against a national bank or its property, and that the levy was void.
Thereafter, before defendant’s motion was decided, plaintiff’s counsel filed in the office of the clerk of the district court
“In the case of National Bank of Montana v. First National Bank of Poplar of an attachment, a release of said attachment has been filed and put on record in this office on the 11th day of September, 1923. I am sending notice of the release to you upon the recommendation of the sheriff’s office.
“Tours respectfully,
“W. J. Hardie, C. & R.”
October 22 the district court sustained defendant’s motion to discharge the attachment and set aside the levy on the defendant’s property. From this order plaintiff appeals.
Counsel for plaintiff concedes that the attachment was issued in contravention of the federal statute forbidding the attachment of the property of national banks under process from the state courts before final judgment. But he insists that a discharge of the attachment was completely effected hy its voluntary release, and that nothing was left upon which a judicial order could operate. To sustain his position numerous decisions are referred to. But they are not at all in point upon the question presented in the instant case, and therefore we shall not occupy space in discussing them.
Webster defines the word, “discharge,” as follows: “To set aside, annul, dismiss.” Release: “To let loose, to set at liberty, to let go.” The release by the sheriff is a ministerial act. The discharge of the attachment is the result of ■action by the court. The party instigating the attachment proceedings may give the sheriff directions to release the levy.
Section 9284 provides that the writ of attachment may be discharged when it appears to the court to have been improperly or irregularly issued.
An attachment of real estate in the manner prescribed by law creates a lien upon the estate. Attachment statutes are for the benefit of creditors. The lien may be released by the party originating it.
But the defendant here availed himself of the right given by section 9282 and interposed a motion to discharge the attachment. Plaintiff’s direction to release the levy was tantamount to an admission that defendant’s motion to discharge the writ was well taken.
Upon all the conditions it was the duty of the court to rule upon defendant’s motion. In sustaining it no error was committed.
The order appealed from is affirmed.
Concurrence Opinion
I concur in the result. The meaning of some expressions found in our attachment statute (sees. 9256-9300, Rev. Codes) is not very plain, but, considered in its entirety as reflecting upon the question here involved the statute, in my opinion, employs the terms “release” and “discharge” to express independent and unrelated ideas,
The word “release” refers exclusively to the levy, and signifies to let go; to give up the property seized. The release of an attachment involves a ministerial duty only, and may be ordered by the party who caused the levy to be made. Attachment is a distinct proceeding ancillary to the action in which it is employed. (Duluth Brewing & Malting Co. v. Allen, 51 Mont. 89, 149 Bac. 494), and the release of the levy does not affect it. The attachment proceeding still remains intact, and an alias writ may be secured without an additional affidavit or undertaking. (Sec. 9275.,)
The term “discharge” refers exclusively to the writ itself, and the discharge of an attachment involves a determination that the writ should not have been issued. When the discharge is effected, the entire ancillary proceeding is at an end. The determination that the writ should not have issued is >a judicial function — one which the party securing the writ cannot perform himself, nor can he procure it to be performed by officers who act merely ministerially.
'Section 9282 makes reasonably plain the distinction between the terms.
Nothing which the plaintiff did in this action could deprive the court of its authority to pass upon the defendant’s motion to discharge, and, since it is manifest that the writ should not have issued, it was properly discharged. (Sec. 9284, Rev. Codes.)
Concurrence Opinion
I concur in what is said by Mr. Justice Holloway.
