*1 INSURANCE, INC., a Nevada Corpora PARAMOUNT and FRONTIER FIDELITY SAVINGS AND tion, ASSOCIATION, LOAN Corporation, Nevada Partnership SMITLEY, RAYSON & Appellants, Consisting of WILLIAM RAYSON and PAUL G. V. SMITLEY, PAUL V. SMITLEY and WILLIAM G. RAYSON, WALKER, McMILLAN & Partnership, McMILLAN, B. JAMES P. S. and PIONEER WALKER Corpora CORPORATION, FINANCIAL a Nevada Respondents. tion, No. 6124 July 29, 1970 Johnson, Albright, George, Simmons, & of Las Steffen
Vegas, for Appellants. Lee, Wiener, John Peter Galatz, & Goldwater Dale W. Beasey, of Vegas, Las Respondents.
OPINION Court, Collins, theBy C. J.: This is an from an appeal discharg- order lower court ing an attachment the issuance of which was obtained appel- lants levied respondent Smitley. We affirm that order. Paramount, referred to filed
Appellants, hereinafter complaint for waste May sought In their complaint they judicial foreclosure of 14 deeds securing $490,000, of trust totaling *3 receiver, alleging of a that the had respondents committed per- by allowing missive waste the secured the property by trust to deeds The was deteriorate. and some property apartments, were said to be condemned as unfit for human occupation. 18,
An order a was appointing receiver entered January 1968, in a which lower court said that it judge the appeared mortgaged were premises inadequate mortgage for the security continuing debt and the to deteriorate. premises 28, 1968, February the was granted receiver an order per- mitting him to obtain and appraisement bids for repair 13, and to property 1968, employ security personnel. On May Paramount the court by was authorized to enter a cost-reim- to bursement contract the repair premises.
October Paramount an filed affidavit of attachment and directed the sheriff on levy to of Smitley. October 9, 1969, Smitley discharge moved to the attachment on the grounds that was it and improperly issued. The irregularly grounds alleged were against that Paramount’s claim Smitley was secured a on mortgage real the property; that affidavit was to insufficient establish the security was valueless or of value; insufficient that the had security first be exhausted determined; the could before value be and that the the stay court relating federal Rayson, partner, also to applied concerning actions Smitley. judge granted
The trial discharge motion to Smitley’s the 14, attachment November 1969. are these: our determination
The issues thus for presented of NRS 31.010 apply I. Whether the provisions deed on real in an action for foreclosure of property? is sufficient counsel party’s
II. Whether an affidavit of a of insufficient value? establish that the has become of the recon- We faced this problem are in appeal statutes, NRS can, effect to two Nevada ciling, giving if we an earlier decision 31.0101 and 40.4302 construed 82 Nev. of this court in McMillan (1966). a trust deed within In court held that fell this 40.430); (NRS rule” of “one-action intendment plaintiff reads, part: of pertinent at the time in “The 1NRS 31.010 issuing summons, afterwards, may prop any have the or at any erty for the satisfaction of of defendant attached as may recovered, gives security judgment be unless the defendant pay judgment, following provided, cases: as hereinafter in contract, express judgment or or In an “1. money, by mort- payment of which is not secured for the direct being personal property gage, pledge situated or real or lien or has, secured, state; originally without when such in this or if given, person plaintiff any whom of act plain- in sum due the value secure the become valueless or insufficient tiff, for the unsecured the attachment shall issue case in which plaintiff, the amount portion or excess of amount due become so plaintiff as the same has the value above added.) (Emphasis insufficient.” commenced, “Except this action was read: at the time 2NRS NRS, provided chapter but one action for 104 of there shall be debt, right recovery for the enforcement of secured the by mortgage estate, be accord real which action shall or lien section, provisions and 40.450. this and NRS 40.440 ance with the action, be rendered the amount found shall In such judg power, have its decree court shall due the property, part ment, a sale of the encumbered or such thereof to direct proceeds pay necessary, apply the the sale to the as shall *4 sale, suit, expenses of the costs and of the costs and of ment plaintiff. mortgaged the land consists of a due to If amount contiguous parcels, parcel, single or situated in two or two more or may, judgment, counties, the court in its direct the whole thereof more to be sold in ceedings, sheriff, upon pro one of such counties such effect, property like if the whole and with as of county. appear shall in that If it from the sheriff’s return situated proceeds deficiency a of such and balance still to the there is judgment against plaintiff, then shall be docketed for such balance debts, personally shall, or defendants liable for the the defendant docketing, of lien the real estate of the from the time such debtor, may thereupon and an execution be issued court, judgments, in like manner and other clerk of form deficiency property judg from the to collect such balance or of the ment debtor.” statute, 31.010, the attachment NRS when the applied only “valueless;” was security that the mode of value determining first security is to exhaust the sale security by pursuant deed; and, to the finally, that, trust “Once the been security has satisfied, sold and the debt not an action on the note with ancillary Id. is at 121 and 122. permissible.” Accordingly, the issuance a writ of attachment pursuant NRS 31.010 the lower court was ground reversed on the the conclusory affidavit of the was creditor acceptable valueless, show the had security become but property instead sale of the was first required.
3. We are now faced with the problem of attempting reconcile that decision with the conflicting rights apparently granted 31.010 and NRS where in a judicial proceeding, from distinguished the sale secu- rity deed, under property is not property valueless, strong but evidence presented is show it is insufficient value to secure the sum due. We conclude that the rule of should be supra, limited in its to sale of application security property under trust deed and not to judicial foreclosure proceedings.
4.
In deciding
this court relied heavily upon
Ramelli,
Barbieri
(1890),
adopted change common rule which permitted § pertinent part: plaintiff, 3Cal. Statute C.C.P. 537 reads in “The issuing summons, afterward, may at the time of or at following have the of the defendant attached ... cases: contract; support “1. Unsecured actions. In an action contract, express payment money for the direct . . . by any mortgage, where the contract ... is not secured deed of trust personal property, any pledge lien personal real or or, property, originally secured, has, if without person given, act of the or the to whom the become valueless.” § 4See Rev. Laws of Nev. 1912
649 of sale of land remedy either pursue creditor v. United note, at once. See McMillan on the both suit 20 119, Bentley, and Bank of v. Italy at supra, in a (Cal. 1933). is accomplished That purpose P.2d 940 but There one judicial foreclosure and if accomplished, is first in which the sale of owed, debt satisfying results in any deficiency action, which when is rendered in same deficient sum execution to issue. docketed permits “one-action,” be resorted to might
Unless
in
has “become . . . insuffi-
showing
the security
proper
rights
statutory
sum due plaintiff”
in value to secure the
cient
31.010 are effectively
conferred
creditor-plaintiffs
consideration to rules
regard,
give
must
denied. In that
we
court. In
adopted
construction
this
statutory
previously
19,
(1871),
22
cited
Examiners, 7 Nev.
v. Board of
Torreyson
Smith,
111 P.
Ex
33 Nev.
parte
in
approval
of a
should
(1910),
statute
part
930
this court said: “[N]o
to mere
language
surplus-
turned
nor
nugatory,
rendered
be avoided.” “Laws
can
if such
age,
consequences
properly
meaning,
according to their
spirit
be construed
are also to
Buckner,
v.
to their letter.”
according
Lynip
merely
426,
(1895).
way
We see no other
439,
22
give NRS 31.010 simultaneous effect to Language McMillan. we do not holding, overrule By when the applies only that NRS 31.010 McMillan the effect applies only statute dictum. That is valueless when a Thus, not available terms it is in an “action.” its trustee is exercised. deed of sale under power case on the in that brought the action McMillan held that been no waiver of because there had was improper note holding. was unnec- It approve We continue security. to decide the applicability to the decision in that case
sary rule. Sub- the “one-action” NRS 31.010 to “actions” under recognized this court alternative sequent sale was available or trustee’s judicial foreclosure proceeding by & Mtge. Land Co. a deed of trust. Nevada beneficiary P.2d 198 Ranch, Inc., 83 Nev. Hidden Wells the distinctions (1967). sharpens out and points This decision between those alternatives. 40.430, all the under NRS proceeding In under must be done
steps required permitted and supervision. If, scrutiny foreclosure proceeding under *6 statute, that a plaintiff seeks attachment where the has due, become insufficient in value to secure the sum defendant has to discharge seek of that opportunity by appli- attachment cation to the very court which the foreclosure proceeding pending. is SeeNRS 31.200.5 Paramount, The affidavit counsel for the which issued, attachment was stated the sum which the only affiant believed the indebtedness exceeded the value of the security. It is a conclusory affidavit which affords no basis for court to conclude that the has in fact diminished value from that it had when accepted security, and, the as plaintiff directed by 31.010, NRS has “become valueless or insufficient in value to secure the sum due plaintiff.” the See Barbieri v. Ramelli, (Cal. 23 1890). P. 1086 We hold that an affidavit seeking issuance of a writ of attachment judicial in a foreclosure must proceeding not be merely and must conclusory contain an opinion of value aby witness to qualified express an opinion. Furthermore, the affidavit must show the that has decreased in value from time the the interest attached. The affidavit relied upon in this case does not meet that test. Accordingly, ruling the of the lower court is affirmed. ruling Because our affirmance of the lower court’s on basis, it becomes foregoing unnecessary decide whether the federal court stay relating to actions Rayson applied also concerning Smitley.
Ruling affirmed. JJ.,
Zenoff, Batjer, Mowbray, concur. J., concurring:
Thompson,
The court holds that the affidavit
the attachment
supporting
5NRS
reads:
31.200
trial,
may also,
apply upon
at
“1.
defendant
before
The
motion, upon
notice
to the
reasonable
court in which
brought
thereof,
discharge
judge
is
of the
the action
following grounds:
attachment on the
“(a)
improperly
the writ
issued.
That
“(b)
exempt
property levied
That the
is
from execution.
“(c)
levy
is
That
excessive.
judge
hearing
“2.
If
court or
thereof on
such motion
grounds
exist,
that
stated in
shall find
of the
subsection 1
levy
discharged.
attachment and
thereof shall
the motion
If
is based
paragraph (c)
only,
1
of subsection
and the same is found to
exist,
discharge
attachment shall be
the excess.”
below dis-
the order
affirms
and on this basis
is insufficient
agree
I
To this extent
attachment.
charging
However,
ancillary remedy
agree
I do not
opinion.
foreclosure
judicial
available in a
is
contract, express
“upon
to an action
ancillary
Attachment
is
30.010.
money.”
direct
payment
for the
foreclosure, NRS
The
assume
majority erroneously
as a
40.430,
I
is such an action.
view
not within the
from and
distinct
statutory
separate
proceeding
statute. The
the attachment
actions contemplated
contract
rule,
preclude
“one action”
very
purpose
aids, unless
ancillary
with its
an
secured note
has become valueless.
is waived
(1966). This
117,
ARNIE Respondent. COUNTY, NEVADA, CLARK No. 6251 August 10, Graziadei,
George Las Vegas, Appellant. E. notes promissory $475,245 which there remained unpaid plus moneys paid Paramount fire insurance and $39,- taxes in the amount of costs, interest, fees. attorney Damages for waste left for later open determination. January Paramount petitioned for the appointment