14 Mont. 81 | Mont. | 1894
Through this action, in the nature of creditor’s bill, plaintiffs seek to establish and enforce judgment liens claimed by them upon certain property held and claimed to be owned by defendants.' These conflicting claims arose in this wise: Plaintiffs are the owners of certain judgments rendered against Jacob F. Speith, as the surviving partner of the firm of Speith & Krug, aggregating in amount about twenty thousand dollars, which judgments were rendered in 1888, and are unsatisfied. Defendants are also judgment creditors of the same character; that is, they own judgments recovered against said Jacob F. Speith as surviving partner of Speith & Krug. It appears, however, that these defendants, in the commeuce
Plaintiffs in this action, who obtained or succeeded to judgments against said surviving partner, but who failed to get any of the proceeds of the property of said firm in satisfaction of their judgments, now, through this action, undertake to establish what they claim to be liens on said property arising from their judgments. They maintain that said attachments, torerunning those judgments of defendants in this action, were, for certain reasons to be hereafter considered, void processes.
The process of attachment levied upon said property in said actions of defendants against Speith, surviving partner, etc., were contested by motion to dissolve the same, which motion prevailed in the trial court; but that ruling was reversed on appeal to the supreme court, wherein it was held that such attachments would lie. (See Krueger v. Speith, 8 Mont. 482; Cobb v. Speith, 8 Mont. 494; Maxey v. Speith, 8 Mont. 494; Bozeman Nat. Bank v. Speith, 8 Mont. 495.) So it appears that those attachments were upheld, and in due course the title now held by these defendants was acquired by sale of the attached property on execution issued upon the judgments obtained in those attachment suits.
One of the minor points urged by appellants is, that those attachment liens were waived, or became void, because the plaintiffs in those attachment suits proceeded, after obtaining judgment, to sell the attached property under execution, while the appeals from the respective orders dissolving said attachments were pending, undetermined. No authorities are cited to support this proposition, and we fail to perceive any force in it, either from analogy to other rules of waiver, or upon principle or reason. The proposition assumes that those attaching creditors, by appealing, and superseding or holding in abeyance the order of the trial court dissolving their attachments, and then prosecuting their appeals to the effect of
After the decision upholding the attachment liens, cited supra, the legislature of Montana enacted an amendment to section 229 of the Probate Practice Act. ■ (Sess. Laws 1889, p. 146.) Appellants contended that the provisions of said statute, as amended, require that all of said partnership estate be applied to the payment of the partnership creditors “alike, and giving no preference to any, except such as are made so by mortgage pledge or lien,” and that, this provision having been enacted prior to the sale of the partnership property under execution in the cases above referred to, had the effect of so changing the law relating to those cases, while in progress, as to annul the attachment liens acquired and existing prior to the passage of that amendment, and that the sale of said property under execution was void as in contravention of that statute. We do not think appellants’ view can be maintained. It would give the statute under consideration the retroactive effect of abrogating the liens lawfully acquired by attachment, and existing when the present statute was enacted. In our opinion, the ruling of the trial court in refusing to so construe the statute was correct. (Gunn v. Barry, 15 Wall. 610, Eastman v. Clackamas Co., 32 Fed. Rep. 24.) In order to sustain plaintiffs’ action it was necessary to give the statute such retroactive effect. We think the demurrer was properly sustained.
Respondents raise a question of practice, insisting that this action, in the nature of a creditor’s bill, is improper procedure, that such action has been superseded by the statute providing for proceedings supplementary to execution, which proceedings, respondents contend, should have been invoked for the relief sought by appellants. In support of this view, several cases are cited, among which is Sperling v. Calfee, 7 Mont. 529, wherein it is remarked that those provisions of our code (Code of Civil Procedure, chapter 2, title 9), for proceedings supplementary to execution have, to a great extent, if not wholly,
For the foregoing reasons the judgment of the trial court will be affirmed.
Affirmed.