94 Wash. 472 | Wash. | 1917
In an action instituted in a district court of Bonner county, Idaho, by these respondents against four brothers, copartners under the firm name of Lazos Brothers, a writ of attachment was sued out and placed in the hands of the sheriff of that county for levy upon property of the defendants there. The sheriff returned the writ, showing a seizure and taking into possession by him under the writ of certain chattels as the property of the defendants. Subse
Upon this judgment execution was issued, delivered to the sheriff of the county for execution, and later by him returned with the return “nothing found.” Thereupon the sheriff, at the direction of the judgment creditors, demanded from Lazos Brothers, the judgment debtors, the return of all the property released from attachment under the redelivery bond, and the property so demanded, having been disposed of by the defendants, was not redelivered, which facts the sheriff certified. Upon the failure to redeliver the property released by the redelivery bond, this action was instituted against the
The first complaint of error by appellant is based upon certain facts which it asserts, under the laws of Idaho, rendered the pretended levy of attachment by the Idaho sheriff absolutely void. These facts appellant offered to prove by certified copies of public records in Bonner county, Idaho, of the existence of a certain chattel mortgage from Lazos Brothers to a bank antedating the suit and attachment, an assignment by the bank of this chattel mortgage to the National Pole Company, and also a prior bill of sale to the National Pole Company; all of which offers of evidence the trial court rejected, holding that the existence, at the time of the attachment, of mortgages and bills of sale on some of the property attached could not properly be urged as a defense in an action to recover on the redelivery bond.
Appellant relies upon the statute of Idaho (Revised Codes, Idaho, § 8411), which provides that:
“All mortgaged personal property may be attached at the suit of any creditor of the mortgagor; such creditor, however, must pay or tender to the mortgagee, the amount due him on such mortgage before the officer making such attachment is entitled to the actual possession of such property.”
It is shown that there is no evidence that the respondents, when causing their attachment to be levied in Idaho, made any tender to the mortgagee; nor did they cause to be attached only “the equity of redemption in the mortgaged chattels,” under a further clause of that statute providing that, if the attaching creditor prefers, he may cause to be attached the equity of redemption of the mortgagor, by serving upon both the mortgagor and the mortgagee a copy of the writ of attachment and a notice signed by the attaching officer that the interest of the mortgagor is attached. Decisions of the supreme court of Idaho are cited as holding that a substan
In the last cited case, it was held that “no lien is created unless the service of the writ is made in substantial compliance with the statute,” which in that case was held not done. In Bank v. Sonnelitner, supra, it was held that, if the acts required of the officer by the statute are not performed by the officer, there is no lien. In the Williams v. Olden case, it was said of another case (First Nat. Bank v. Lieuallen, 4 Idaho 431, 39 Pac. 1108) that in that case “no question was raised as to the performance of the acts required by the officer in the levy of the writ.” In the case at bar, the validity of the levy is not attacked because of the failure of the officer to do any act required of him, but the only default claimed is that of respondents themselves, the creditors, in not tendering the mortgagee the amount of its mortgage, or, otherwise, directing that their preference was to attach only the equity of redemption of the mortgagors; in neither of which matters had the officer anything to do without the action and direction of the creditor, under the statute, and in neither of which contingencies did he fail.
It may be conceded that the levy was void as to the prior mortgagee and incumbrancer by bill of sale; but,, as to them, they made no effort to have that matter determined in the court having jurisdiction of the cause and of the property, by a summary proceeding which could be made before the sheriff holding the property, under Revised Codes, Idaho, § 4314. And as to their rights in the premises, the appellant, as surety on the debtors’ redelivery bond, had and has no concern whatever. As to the attachment defendants, unless the attachment was irregularly or improvidently issued, which contention they never made, the levy was certainly good as
The redelivery bond was the substitute for the chattels seized. It is the design of the statutes of Idaho providing for such substitution that the attachment lien of the creditors shall be absolutely annulled, the property pass back into the hands of the defendants unincumbered by the lien of attachment, and that the attaching creditor rely wholly, though involuntarily, upon the undertaking given by the defendants.
“This undertaking would seem to be a new and independent contract, into which the defendant and his sureties enter, regardless of plaintiff’s desire in the premises, but for his security. ... It would seem clear upon principle that an undertaking entered into under such circumstances should be held a new and independent contract, and should operate as a waiver of all defects in, and objections to, the original attachment proceedings which the defendant could have made.” Glidden v. Whittier, 46 Fed. 437.
The above case was one originating in Idaho in the Federal disti’ict court and involving the same statutes. See, also, Rosenthal v. Perkins, 123 Cal. 240, 55 Pac. 804, and San Francisco Sulphur Co. v. Aetna Indemnity Co., 11 Cal. App. 701, 106 Pac. 111, involving identical statutory provisions; 4 Cyc. 700; 2 R. C. L. 890, § 106; Oliver v. Warren, 124 Ga. 549, 53 S. E. 100, 110 Am. St. 188, 4 L. R. A. (N. S.) 1020; Fidelity & Deposit Co. v. Bowen, 123 Iowa 356, 98 N. W. 897, 6 L. R. A. (N. S.) 1021; Brady v. Onffroy, 37 Wash. 482, 79 Pac. 1004.
The second proposition by appellant is, in substance, that the entry of a general judgment in the suit in Idaho, which did not preserve the lien and form of the original attachment, operated as a release of the obligations of the redelivery bond. As was heretofore observed, the design of the Idaho statute was to effect, by the giving of the redelivery bond, the absolute release of the attachment so that the property
This being so, the judgment could not and should not attempt to preserve the lien of an attachment that had been absolutely released, passed out of existence, and another security substituted. Brady v. Onffroy, supra; 2 R. C. L. 853, § 65; 4 Cyc. 692, 826.
There was no error. Judgment affirmed.
Morris, Mount, Fullerton, and Parker, JJ., concur.
