149 P. 460 | Idaho | 1915
— This is an action brought in the district court of the first judicial district for Shoshone county, against the sheriff of said county for failure to take possession of a certain portion of the personal property described in a chattel mortgage, and sell the same to satisfy the balance due upon an alleged indebtedness to the plaintiff by the mortgagor by notice and sale upon an affidavit by the mortgagee, as provided under sec. 3413, Rev. Codes, as amended by Sess. L. 1909, p. 149.
To the amended complaint the defendant filed both a special and general demurrer. The demurrer was sustained by the trial court. Plaintiff refused to amend or plead further, and thereupon judgment of dismissal was entered in favor of the defendant. This is an appeal from the judgment sustaining the demurrer.
There are no distinct enumerations of error set out in appellant’s brief as required by rule No. 45 of this court. That rule should be complied with by counsel for appellants in preparing briefs. There is, however, what are designated as ‘ ‘ points of error, from which we gather that the error re
Sec. 3413, Rev. Codes, as amended, supra, provides: “In proceeding to foreclose by notice and sale, the mortgagee, his agent or attorney, must make an affidavit stating the date of the mortgage, the names of the parties thereto, a full description of the property mortgaged, and the amount due thereon. Such affidavit shall be sufficient authority to demand and receive possession of the property, if the same can be taken peaceably, but if it cannot be so taken, then such affidavit must be placed in the hands of the sheriff of the county or the constable in the precinct where the property is located, together with a notice signed by the mortgagee, his agent or attorney, requiring such officer to take the mortgaged property into his possession and sell the same.”
Prior to the amendment of said sec. 3413, it was not necessary for the mortgagee, desiring to foreclose a chattel mortgage by affidavit and notice, to make a demand upon the mortgagor ; in fact, this court held in the ease of Rein v. Callaway, 7 Ida. 634, 65 Pac. 63, that under the statutes of this state a mortgagor could not lawfully authorize the. mortgagee, by
We are of the opinion that it was the duty of the appellant to have alleged in his amended complaint a full compliance with the provisions of the statute as herein referred to, and that by reason of his failure so to do said amended complaint was subject to the respondent’s demurrer, and that the court did not err in sustaining the same.
An action cannot be maintained against an officer for his neglect or refusal to take into his possession, upon an affidavit and notice, personal property under a chattel mortgage, un
The judgment is affirmed, and costs awarded to respondent.