Omaha Upholstering Co. v. Chauvin-Fant Furniture Co., 18 Mont. 468

18 Mont. 468 | Mont. | 1896

HuNt, J.

Section 200, of the First Division, Code Civil Procedure, 1887, provides that the defendant may apply on motion, upon reasonable notice to the plaintiff, to the court in which the action was brought, that the attachment be discharged, on the ground that the writ was improperly issued. A motion made under this statute should state specifically the grounds upon which the motion is based; so should the notice of motion to discharge the attachment. The object of such specifications is to give information to the adverse party of the particular nature of the objections to be made to the writ: As was recently said by the supreme court of Utah, in Cupit v. Park City Bank, 37 Pac. 564:

“The provision in the statute prescribing that notice may be given of the motion ‘on the ground that the same (the Avrit) was improperly or irregularly issued’ is only a provision that, wherever the writ is improperly issued, that fact will authorize this application to discharge. It is like a great variety of provisions indicating the general ground or reason upon which parties may proceed, or the action of the' court may be based, and which áre never held to obviate the necessity of specifying the points of objection upon which the moving party may rely. If the point be stated, it may be possible for the opposite party to answer it, and the object of the rule is to give him a fair opportunity to do so. ”

It is laid down by Drake on Attachments, section 415, that the motion must specify the grounds upon Avhich it is made. ‘ ‘It is not sufficient to say that it is made because the writ was improperly issued; there must be a statement of the points of the objection upon which the moving party will rely.”

In Freeborn, Goodwin, et al. v. Glazer, 10 Cal. 337, the notice of’ motion to discharge the writ of attachment stated that the motion would be made ‘ ‘because the said writ' was improperly issued. ’ ’ This was held to be defective. Upon a rehearing of the case it was decided, under the provision of the California laws (Section 138, General Laws of California, by Hittell,) which section is like section 200 of the Montaná Code, cited above, that the provision did not obviate the necessity of specifying the particular points of irregularity upon which the motion to discharge would be made. “If the point be stated, ’ ’ said the court, 1 ‘it may be possible for the opposite party to answer it, and the object of the rule is to give him a fair opportunity to do so. ’ ’ This rule was followed in Loucks v. Edmondson, 18 Cal. 203, and in Donnelly, et al. v. Strueven, 63 Cal. 182. In this .latter case, the court, citing section 556 of Harston’s Code of Civil Procedure of California, which is (so far as the point under discussion is affected) almost identical with section 200 of the Montana Code of 1887, affirmed the rule that a defendant applying to have a writ of attachment discharged, shall state in his notice the particular ground upon which he relies.

The counsel for appellant in the case at bar tells us that the statutes of California at the time of the decision in Donnelly v. Strueven, required the notice to state the particular ground relied upon; but in this respect the counsel is in error. This argument of the inapplicability of the California statute to the Utah statute, section 3326 Compiled Laws of Utah, which is like section 200 of the Montana Code, was advanced to the supreme court of Utah upon the rehearing of Cupit v. Park City Bank, cited above. See same case 40 Pac. 707. But in the opinion upon the rehearing, the incorrectness' of the contention was clearly demonstrated by Justice King, who said, after citing the various statutes of California : “it will thus be seen that the statute of California, so far as it concerns the questions involved in this case, is the same as ours, and was at the time the cases above referred to were decided: (Cupit v. Park City Bank, 40 Pac. 707.)

Wade on Attachment, section 292, states the rule in this language : £ ‘The matter first in time as well as importance, to bring the regularity of proceedings before the • court on a motion to discharge the attachment, is notice. This is requisite under the practice of all the states, whether at common law or under the .Codes. • And the notice, in order to serve its purpose, should not only state that a motion will be made to discharge the attachment, or quash the writ, giving the time when such motion will be called up, but it must state the particular grounds upon which the dissolution of the attachment will be asked. Under a statute which provided that the defendant might at any time before answering, “apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, or to a county judge, that the attachment be discharged, on the ground that the writ was improperly issued,” it was held that the notice must contain a more specific statement of the grounds than that embraced in the words of the quotation in italics. This was only regarded as a provision that, whenever the writ was improperly issued, that fact would authorize the application for its discharge. The notice, in specifying the grounds of the motion, should state wherein it would be urged that the writ was improperly issued. ’ ’

The very latest author to which we have access says that the motion papers of the party applying for dissolution of an attachment must specify the grounds he relies upon therefor, and that the irregularity or insufficiency must be clearly pointed out. (Shinn on Attachment and Garnishment, section 347.)

In Vaughn v. Dawes, 7 Mont. 360, it was held that the assignment of the reasons for discharging the attachment should be definitely and specifically designated.

The- appellant argues that we should resort to the affidavits he has filed for the specific ground relied upon. But the authorities cited clearly hold that the notice of motion, and the motion, must specify the grounds upon which the party moving to dissolve, relies, and it would be unreasonable, we think, to compel a party to pick out such portions of lengthy affidavits as may perhaps state certain grounds upon which his adversary intends to rely. He should not be compelled to do so. It is the duty of the party who seeks to have the attachment discharged to state his grounds, and if he fails to do so, the court will disregard his motion.

From the foregoing views it follows that the notice of motion, and the motion in this case, are fatally defective. We' will say, however, that it appears by an examination of the affidavit that the material issue raised on the motion to dissolve was whether the defendant owed a part of the amount claimed by the plaintiff, and whether another portion of the indebtedness claimed by the plaintiff was due. This was also the principal issue for trial under the pleadings. If we are correct in this statement of the issue presented by the affidavit and by the pleadings, the court ought not to have dissolved the attachment, for under the motion to discharge an attachment on the ground that the writ was improperly issued, it is not within the scope of the inquiry to try the merits of the main action. (Newell v. Whitwell, 16 Mont. 243.)

The order overruling the defendant’s motion to dissolve the attachment is affirmed.

Affirmed.

De Witt, J., concurs. Pemberton, C. J., not sitting.