21 Wash. 473 | Wash. | 1899
The opinion of the court was delivered by
On the 15th day of June, 1895, the respondent executed and delivered to the appellant, 'Smalley, á chattel mortgage on certain personal property to secure the sum of .$200,.to become due on the first day of October following. The mortgage was absolute.upon its face, but was given .to secure certain advances which Smalley agreed to make to the respondent for the purpose of enabling respondent to care for and harvest a crop of grain growing upon lands which the respondent was farming. . On the 3d day of October, 1895, the appellant Smalley, claiming there was due on the note and mortgage
On the trial of the cause the appellants offered in evidence, in justification of the seizure and sale of the property, the original chattel mortgage and a purported return of the constable, which recited his proceedings had while attempting to foreclose the chattel mortgage. The offered evidence was excluded by the court on the objection of the respondent, and the court’s ruling thereon is assigned here as error. The statute relating to the foreclosure of chattel mortgages by notice and sale does not prescribe that any return of the officer’s proceedings shall be made, nor does it make such return evidence in any case where the. foreclosure is called in question; and it may be doubted whether this return was admissible as evidence to show a foreclosure, even had the constable authority to act under the statute. But the ground upon which the court based its ruling was that a constable has no authority to execute the power conferred by the statute, and on this question the counsel for the respective parties, have directed their argument. The statute (§§ 5871, 5872, Bal. Code) pre
“ Such notice shall be placed in the hands of the sheriff or other proper officer, and shall be personally served in the same manner as is provided by law for the service of a summons. . . . ”
It is contended that the word “sheriff,” as used in this connection, is a generic term and includes all executive officers, a part of whose duty it is to execute the writs of a court, and hence in the absence of the words “other proper officer” the statute would be broad enough to include constables ; and, if this were not so, the words “other proper officer” must be held to mean constables, as there could be no purpose in their use unless it was the intention of the legislature-to provide that constables might act as the foreclosing officer under the statute. We cannot agree with this contention. The statute provides a summary method of foreclosure without the intervention of the courts. The remedy is thus special and statutory, and, being in derogation of the common law, will not be extended by construction beyond the plain import of its terms. This rule of construction forbids giving to the term “sheriff” a generic meaning, and, had that term been used in the statute alone, it is clear to our minds that a constable, as such, would not have been empowered to act. Neither do we think the added phrase gives constables such authority. The language employed is not the ordinary or usual method of designating that class of officers, and it would seem that, had the legislature intended that such officers might execute the power conferred, it would have said so in terms incapable of being misunderstood — would have named them directly. The phrase used is in itself restrictive, rather than expansive. Bouvier defines the word “proper”
It is next objected that the mortgage should not have been excluded by the court, for the reason that it was admissible for the purpose of showing that a debt was due from the respondent to the appellant Smalley, which the appellants were entitled to offset against any judgment the respondent should he entitled to recover by reason of the conversion of the mortgaged property. Had the appellants offered in this connection the note or other proof of the debt, there might have been some force to the contention, but the mortgage itself would prove nothing. It purported to be security for a promissory note given by the respondent to appellant Smalley, and could not be evidence that the note remained due or unpaid, and therefore was not admissible for the reason assigned. Aside from this, the record shows that the mortgage was offered, in connection with the constable’s recital of the foreclosure proceeding, as a justification for the seizure and sale of the property, and not for the purpose of proving an offset. Being
It is next claimed that a new trial should have been granted by the court below because the evidence disclosed that another suit was pending between the same parties, involving the same cause of action. This contention ■ is based upon the theory that the foreclosure proceedings were transferred to the superior court by the action taken by respondent while attempting to contest the foreclosure of the mortgage. Conceding' that the order of the- court had that effect, the appellants are not in a position to urge it for reversal. If the order made by the court was valid, it follows that the subsequent proceedings had by the appellants outside of the court were absolutely void. The effect of such an order, when valid, is to transfer the foreclosure to the superior court, where it must proceed as if it had been originally commenced in that court; and a sale of the property by the officer under the notice while the foreclosure was pending in the superior court would amount to a conversion for which an action in favor of the mortgagor would lie.
The judgment is affirmed.'
Q-ordon, C. J., and Reavis, J., concur.