Woolley v. Mayneswells Co.

15 Utah 341 | Utah | 1897

Bartch, J.:

The plaintiff brought this action to recover of the defendant company $1,080.60, rent for a certain storeroom which had been leased to the company. He claimed a lessor’s lien, under the act approved March 8, 1894 (Sess. Laws, p. 123), on all the goods contained in the storeroom, and instituted attachment proceedings as provided in the act. Thereupon a writ, of attachment was issued, and the proper officer levied upon and seized the goods by virtue thereof. Thereafter, on motion of counsel for the defendants, and upon the defendant company filing a bond to secure the lessor, the court, discharged the writ of attachment, and ordered the goods to be released, and this action of the court is assigned as error.

The only question presented, is whether/the court erred in discharging the writ of attachment upon the filing of the bond by the company, the sufficiency of which does not appear to be assailed. It is contended for the appellant that the act of 1894 provides in itself a complete remedy for this class of cases, and that there is nothing-in the act which authorizes the release of property seized pending the final determination of the suit brought for the recovery of the rent. This position cannot be successfully sustained. While the act is silent as to the release of attached property pendente Ute, it is apparent from a perusal thereof that it was not intended to provide a complete method of procedure in the cases in which it applies, nor to interfere with the general law of attachments respecting the discharge of the writ and release of property upon the filing of a sufficient bond by the defendant in the attachment proceedings. That the legislature did not intend to provide a complete method of procedure therein is evidenced by the fact that the act nowhere provides for the discharge of the attachment in any case where the writ was irregularly or improperly issued. Would counsel undertake to maintain the position that, because of the failure of the legislature to so provide therein, the courts have no power to discharge the writ in such cases? Or in case the property levied upon and seized under the writ afterwards turned out to he property exempt from execution, or, if not so exempt, it became apparent that the affidavit on which the attachment proceeding was based was absolutely without foundation in fact. In either of such cases, could it be seriously insisted that the court would be powerless to discharge the writ, because there is no provision therefor in the act? Likewise, in case perishable property were attached, could it be said that the court had no authority to order a sale thereof, because there is no provision for such sale in the law which authorized the seizure of such property? The mere statement of these propositions is sufficient to show the fallacy of the contention that the law of 1894 contains within itself a complete remedy. The act provides for a lessor’s lien for an affidavit in attach-men proceedings as a foundation for the writ, for service of the writ, for the seizure of property, and for the retention thereof until the determination of the action pending between the lessor and lessee; but it contains no provision respecting the discharge of the writ, nor does it specify any cause as a basis for its discharge. The statute being silent as to the procedure to vacate the attachment or to release the property, the court has the right to dispose of motions made for such purposes under and in accordance with the provisions of the Code of Civil Procedure. Therefore, in the case at bar, the court had power, under sections 3324, 3325, Comp. Laws Utah 1888, upon the execution of the bond, to discharge the writ of attachment, and release the property, the bond conforming to the requirements of the law. We perceive no error in the action of the court in the premises. The judgment is affirmed.

ZaNe, C. J., and Minee, J., concur.