164 P. 546 | Mont. | 1917
delivered the opinion of the court.
On December 2, 1916, William Moore executed and delivered to Oeo. L. Stephens his certain promissory note for $1,000. Before maturity Stephens indorsed and transferred the note to the First National Bank of Roundup. The bank commenced an action on the note against Moore and Stephens, and caused a writ of attachment to be issued and to be levied upon a stock of
2. Assuming for the purposes of this proceeding that the relator is a person beneficially interested, though not a party to the action in the court below (Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 10 L. R. A. 627, 24 Pac. 121; Cronan v. District Court, 15 Idaho, 184, 96 Pac. 768), the question presented is: Does the application disclose such a set of circumstances as warrants the relief sought?
The distinction is to be made between a sale of perishable property held under attachment, and a sale made in the interest of the parties. While it may be to the interest of all concerned that perishable property under attachment be sold in limine or before judgment, a sale of such property is made by the sheriff on his own responsibility under the authority conferred by section 6670, Revised Codes. It is only when attached property is sought to be sold under section 6671 that a showing is necessary, and the authority to sell is dependent upon an order of court. In this instance we think the showing and order are sufficient.
3. The relator’s petition for the writ of prohibition is further
It goes without saying that, if the defendants in the attachment suit have no interest in the property attached, the purchaser at the sheriff’s sale will not secure any'title; but this fact does not reflect upon the authority of the court to order a sale of whatever interest, if any, the defendants have.
The motion of the respondent court and judge is sustained. The alternative writ heretofore issued is quashed and the proceeding dismissed.
Dismissed.