Quirk v. Diana Mines Co.

198 P. 672 | Idaho | 1921

RICE, C. J.

On August 9, 1917, respondent commenced an action against the Diana Mines Company, Ltd., and on the same day procured the issuance of an attachment in the action which was placed in the hands of the sheriff of Boise county and served August 10, 1917. Notice of the attachment was posted and published by the clerk on October 20, 1917. Appellant creditors, eight in number, commenced actions against the Diana Mines Company more than two days after the issuance of the writ of attachment, and recovered judgments within sixty days after the posting and publication of the notice thereof. Two of the appellants recovered judgments within sixty days after the notice should have been posted and published according to law. Appellants placed executions in the hands of the sheriff of Boise county, who had served the writ of attachment, and informed him that they claimed the right to prorate in the proceeds of the attachment. It was stipulated that the posting and publication of the notice of attachment by the clerk was without the knowledge of respondent or any representative of his, and was not acquiesced in by him then or at any subsequent time; that the failure and neglect of the clerk to post and publish the notice at the time specified by law was not known to respondent or any representative of his at the time, nor until the early part of October, 1917. The court denied appellants the right to prorate in the proceeds of the attachment. Its refusal was based upon the ground that the notice of the issuance of respondent’s writ of attachment, published by the clerk on October 20, 1917, was the voluntary act of the clerk, without warrant or authority in law, and was therefore a nullity and did not afford any of appellants the right to prorate in the proceeds of respondent’s attachment; and further, that the sheriff had and has no authority to determine the right of the creditors to prorate in the proceeds of respondent’s writ of attachment, but is bound by the terms of the writ which had been placed in his hands, and should follow strictly the directions therein contained until such time as he may be directed or ordered to do otherwise by the judgment or order of a court of competent jurisdiction in the premises.

The statute involved in the consideration of this appeal is C. S., sec. 6781, which, so far as it is material, is as follows: “ .... and two days 'after issuing such writ and delivering it to the proper officer, the clerk must post at the front door of the courthouse, and cause to be published in some newspaper published in the county, if there be one, a notice setting out the title of the cause and the fact that an attachment has been issued against the property of the defendant. Such notice shall be kept posted at least ten days and shall be published, if in a weekly paper, in three issues thereof, and if any other than a weekly paper in at least six issues. Any creditor of the defendant, who, within sixty days after the first posting and publication of such notice, shall commence and prosecute to final judgment his action for his claim against the defendant, shall share pro rata with the attaching creditor in the proceeds of the defendant’s property where there is not sufficient to pay all judgments in full against him.”

Respondent insists that the provisions of the statute quoted above are unconstitutional and void. The constitutionality of this statute was considered in Greene v. Rice, 32 Ida. 504, 186 Pac. 249, and it was' there decided that the law was valid. Practically all of the objections presented by respondent in this case were there considered, and we now reaffirm the decision in the Greene case. In that case, speaking through Mr. Justice Budge, the court said: “The manifest purpose of the act is to provide a fair and equitable distribution of the available and attached assets of the debtor.”

The statute provides that two days after issuing the writ of attachment, and delivery to the proper officer, the clerk must post and cause to be published a notice of the attachment. We are called upon in this case to determine the consequences, if any, which result from a failure of the clerk to post and publish the notice of attachment two days after the issuance of the writ as directed by the statute and his actual posting and publication seventy-two days thereafter.

In Foore v. Simon Piano Co., 18 Ida. 167, 108 Pac. 1038, it is said: ‘ ‘ This notice is not issued to the defendant in the attachment proceedings, nor is it for his benefit. The notice is not essential to give the writ validity and binding force. This notice is required solely in the interest of creditors of the defendant. The closing sentence of section 4304 (now C. S., sec. 6781) indicates clearly this intention and provides the things to be done by any creditor who shall desire to ‘prorate with the attaching creditor.’ ”

The purpose of the statute is to give notice to creditors of a defendant in an attachment action, so that if they desire to prorate they may immediately commence and prosecute to final judgment their claims against the debtor. If they obtain notice by any other means and commence their actions and prosecute them to final judgment, are they precluded from prorating in the proceeds of the attachment on account of the failure of the clerk to obey the direction of the statute, by reason of the provision of the statute that any creditor of the defendant who, within sixty days after the first posting and publication of notice, shall commence and prosecute to final judgment his action or claim against the defendant shall share pro rata with the attaching creditor ?

The right to prorate does not depend upon whether or not the creditor actually is cognizant of the posting and publication of the notice. Under the statute, if he commenced his action after the posting and publication of the notice and obtained judgment within sixty days, he is entitled to prorate whether his action in bringing suit was prompted by a knowledge of the giving of notice or not.

It is contended that the duty of giving the notice was placed by law upon the clerk and not upon the plaintiff in an attachment action, and that the plaintiff has no control over the action of the clerk. Though the duty of giving notice devolves upon the clerk, the plaintiff cannot excuse his lack of knowledge as to whether or not the clerk has performed his duty. The publication is at plaintiff’s expense; his interests are materially affected by the action of the clerk, and it is his duty to inform himself as to whether or not the clerk has acted, and it is within his power to compel the clerk to act.

Creditors are not to be deprived of their right to prorate, if they commence their actions otherwise in time, on account of the failure of the clerk to perform his statutory duty, nor is respondent entitled to any benefit resulting from the failure of the clerk since he neglected to cause the clerk to do his duty. Neither is the giving of notice seventy-two days after the issuance of the writ a nullity. Statutes fixing the time within which an officer is to perform a duty, so far as the rights of third persons are affected thereby, are usually held to be directory rather than mandatory. The respondent could have compelled the clerk to give notice at any time. He is not entitled to the benefit of the limitation fixed in the statute until the time prescribed has expired after the actual giving of the notice.

The statute, therefore, must be construed to mean that creditors who commence their actions within the time prescribed had the clerk performed his statutory duty, and prosecute their claims to final judgment thereafter and within sixty days after the notice is posted and published, are entitled to prorate.

We recognize the fact that the right to prorate is purely statutory and that creditors have no such rights except as obtained from tbe statute. "When conditions arise, as in this case, where the clerk has failed to perform his duty, it becomes necessary to construe the statute which is plain when its provisions have been followed. We think a correct construction of the statute prevents the failure of an officer to do his duty from depriving parties litigant of valuable rights. Nor can a plaintiff obtain valuable rights through official failure, where he has neglected to cause the officer to do his duty.

The judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with this opinion. Costs awarded to appellants.

Budge, McCarthy, Dunn and Lee, JJ., concur.