Willman v. Friedman

HUSTON, C. J.

This is an appeal from an order of the district court of Alturas county discharging an attachment. The plaintiff filed his complaint in the district court, which complaint contained several causes of action, separately stated. The first cause of action, as set forth in the complaint, arose upon a promissory note made by the defendant, and (as is alleged in the complaint) “one Myers Cohn also wrote his name thereon, as surety, thus: 'Myers Cohn.’ ” It is further alleged, in regard to said note, “that Fred. J. Keisel & Co. indorsed the same by writing and indorsing their names on the back thereof, thus: 'Fred. J. Keisel & Co.’ ” Then follows, in the complaint, the allegation of three other causes of action upon three several notes for the sum of $900 each, executed and delivered by defendant to plaintiff, and also a further allegation of the cause of action upon a contract alleged to have been entered into by plaintiff and defendant on the fifteenth day of July, 1891, by the terms of which, it is alleged, defendant agreed to pay plaintiff the interest on the three notes mentioned in the second, third, and fourth causes of action set forth in the complaint, “and also on two other notes for $900 each— one to become due May 15, 1893, and the other July 15, 1893.” Then follows in said complaint, for a sixth cause of action, an allegation of an indebtedness due from defendant to the firm of Wheaton & Lurhs for the sum of sixty-one dollars and thirty cents, for merchandise sold and delivered by said firm to defendant, and which claim is alleged to have been assigned to the plaintiff on May 3, 1893. Then follows another — the *737 seventh and last canse of action alleged in the complaint— which is a claim due from defendant to the California Powder Works, for the sum of $206.55. This last claim was assigned to plaintiff on May 4, 1893. This suit was commenced May 10, 1892. Affidavit for attachment was filed May 10, 1893. Undertaking on attachment was filed May 10, 1893, and writ issued on the same day. On May 16, 1893, motion to discharge attachment was made. On May 17, 1893, hearing was had, on motion to discharge attachment, before district judge at chambers, and on this same day the judge made his order dis~ charging attachment, from which order this appeal is taken. =

It will be seen from the record that only the first cause of action had accrued when the suit was instituted. The affidavit for attachment bears date May 10, 1893. Section 4302 of the Revised Statutes of Idaho provides “that the plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached,” etc. We cannot, therefore, infer that there is any mistake as to dates, and cannot refrain from admonishing attorneys to be more careful in the preparation of their appeals than is evidenced in this one. It does not appear from the record upon what papers, records, or proofs the motion to discharge attachment was heard before the district- judge. There is ho evidence before us that any of the papers appearing in the record were before the district judge on the heariDg of the motion. There can be no excuse for such laches. The order of the district judge discharging the attachment is based upon the ground that the affidavit for attachment is not true, in that said affidavit states, as required by statute, that the alleged indebtedness from defendant to plaintiff, for which attachment is sought, “was not secured by any mortgage or lien upon real or personal property, or any pledge of personal property; whereas, in truth and in fact, it appearing to my satisfaction that the greater portion of said indebtedness was secured by a subsisting lien upon real estate,” etc.

There appears in the record what is denominated a “memoranda of agreement,” made and entered into between plaintiff and defendant on the thirty-first day of July, 1891, by the terms of which plaintiff, for a consideration therein expressed, *738 agrees to sell and convey to defendant certain real estate in the town of Hailey, Alturas county, Idaho, for the sum of $4,500, to be paid in five installments of $900 each, at various dates, with interest. „ It is further agreed that the title papers for said real estate shall be deposited in escrow with the First National Bank of Hailey, Idaho, to be delivered by said bank to said defendant upon and after performance by him of the matters and things by him to be performed, as provided in said memoranda of agreement. The five promissory notes for $900 each, mentioned and set forth in the complaint, were the consideration for said real estate. Hnder this agreement, defendant went into possession of the real estate described in the complaint. The question, and about the only one, discussed in this case, is, “Does the reservation of title in the vendor create such a lien in his favor as to disbar him from invoking the remedy by attachment under our statute?” Why was the title to this real estate reserved in the plaintiff? Defendant went into possession under the contract, and made partial payments of the purchase price. If the reservation of title in the plaintiff was not for the purpose of security, we cannot imagine what it was for. If it was not a “vendor’s lien,” in the strict sense of that term, it was security by lien upon real estate, and, while it continued to exist, constituted a bar to the issuance of an attachment, under the provisions of section 4303 of the Revised Statutes of Idaho, “unless it had, without any act of the plaintiff, or the person to whom the security was given, become valueless.” (Gessner v. Palmateer, 89 Cal. 89 , 24 Pac. 608 , 26 Pac. 789 .) The affidavit for attachment being untrue, in that it stated that “the payment of the debt was not secured by any mortgage, lien, or pledge upon real or personal property,” its verity is not re-established by the fact that plaintiff had included in his action two small claims assigned to him but a few days before the commencement of suit, which claims were unsecured. It was not to serve such purposes that the very latitudinous attachment law of this state was enacted. )(Murphy v. Montandon, ante, p. 325, 35 Am. St. Rep. 279 , 29 Pac. 851 .)

There is another matter, in connection with this ease, to which we desire to call attention. Section 4304 of the Revised *739 Statutes of this state provides that “before issuing the writ [of attachment], the clerk must require a written undertaking on the part of the plaintiff, in a sum not less than $200, and not exceeding the amount claimed by the plaintiff,” etc. This invests the clerk with a discretion in fixing the amount of the undertaking to a minimum of $200, and a maximum fixed by the amount of the claim sued for. The case under consideration is a striking illustration of the disastrous results that are liable to ensue from placing such a discretion in the hands of a clerk. In the case at bar, the amount sued for, as shown by the affidavit for attachment, was the sum of $4,661.82. The affidavit of the defendant in support of his motion to discharge the attachment contains the following statement: “Deponent further says that the property attached consists of a stock of goods with which defendant had been engaged in business for many years, now exceeding $20,000, and has built thereon credit; that his business has exceeded $45,000 per year for over two years past; that the effect of this attachment is to ruin the credit, business, and business standing of this defendant; that the value of said business far exceeds the amount involved in this litigation.” The undertaking was for $300. Comment is unnecessary. So long as the statute remains as it now is, we think a safe exercise of discretion by the clerk should in all cases require an undertaking not less than the amount of the claim sued for, as shown by the affidavit, when the sum sued for is over $200. Order and judgment of district court affirmed, with cost to respondent.

Morgan and Sullivan, JJ., concur.