American Surety Co. v. Kartowitz

'Attachment—Motion to Dissolve—Courts—Practice—Successive Application on Same Ground—Defective Affidavit— Amendment—Appeal—Who not Entitled to Belief—Waiver. Attachment—Motion to Dissolve—Third Party Claimant—Failure to Appeal—Effect. 1. One who, claiming to have purchased a portion of attached property after levy of the writ, made no attempt to appeal from an order refusing to dissolve the attachment, cannot obtain relief on appeal taken by another, except so far as the relief granted the appellant may inure to his 'benefit. 1. For authorities with‘respect to proceedings on motion to dissolve attachment, see notes in 123 Am. St. Rep. 1053; Ann. Cas. 1916D, 476. Same—Successive Motions on Same Ground not Permissible. 2. Held, under the rule that a party cannot make successive applications to obtain relief upon the same ground, that where defendant had the opportunity to (and in fact did) present in his motion to dissolve an attachment the ground that the affidavit on attachment was insufficient, he was barred from renewing his motion based upon the same ground. Courts—Practice—Party must Present All Issues. i 3. Whenever a proceeding is instituted sufficiently broad in its character to include the determination of all existing issues between the parties touching the same subject matter, they must be presented for determination to prevent useless litigation. Attachment—Leave to Amend Affidavit—Waiver by Appeal. 4. Where, instead of taking advantage of leave to renew a motion to dissolve an attachment granted in an order refusing to dissolve, movant appealed from the order, he waived the privilege to renew it. Same—Defective Affidavit—Subject to Amendment. 5. An affidavit on attachment stating that the debt “is not secured” instead of “has not been secured,” as required by statute, though defective, was not void, but subject to -amendment under section 6683, Eevised Codes.

Appeal from District Court, Hill County; H. C. Hall, Judge. Action by the American Surety Company of New York, a corporation, against Herman F. Kartowitz. From an order denying a motion to dissolve an attachment, defendant appeals. Attachment, -considered as a means of creating a lien in favor of an ordinary debtor, as a preliminary levy anticipatory of execution after judgment, as an innovation on common law, and as the means by which extraordinary jurisdiction is acquired and exercised, is a harsh and exceptional remedy, and because it is such, the statutes authorizing it should be strictly construed. (Waples on Attachments, sec. 23.) To establish the necessity for the extraordinary relief he claims, the creditor must follow the statute when making his oath. As the affidavit is necessary to jurisdiction in attachment cases, it must substantially conform to the statute. Failure of an affidavit for attachment to state that the debt sued on was not secured by any mortgage or lien, or, if so secured, that the security had become valueless, without any act of plaintiff, or of the person to whom such security had been given, is ground for dissolving the attachment. (Scrivener v. Dietz, 68 Cal. 1, 8 Pac. 609.) Section 6657, Eevised Codes, requiring affidavits for attachment to state the indebtedness has not been secured by any mortgage, etc., or, if originally so secured, such security has become valueless, is not complied with by an allegation that debt is not secured, since it does not negative implication that it was previously secured. (Continental Oil Go. v. Jameson, 53 Mont. 466, 164 Pae. 727; Union Bank v. Himmelbauer, 56 Mont. 82, 181 Pac. 332; Heaton v. Panhandle Smelting Co., 32 Idaho, 146, 179 Pac. 510.) The court acquired no jurisdiction to issue the writ, and it was, therefore, as well as all proceedings under it, null and void. “Jurisdiction to perform past acts cannot be conferred by amendment.” (1 Wade on Attachment, p. 150; Crouch v. Crouch, 9 Iowa, 269.) The question has been settled in this state, as to the amendment of void process, and is no longer open to controversy. (Sharman v. Huot, 20 Mont. 555, 52 Pac. 558.) While the particular process under discussion in the above case was a summons, the rules of law there announced apply with equal force to the process of attachment. The omission of essential averments in an affidavit for attachment has been held fatal to the attachment, and cannot be supplied by amendment. (1 Wade on Attachment, sec. 3; Shield v. Dothard, 59 Ala. 595, 596; Marx etc. v. Abramson, 53 Tex. 264; Cross v. McMaken, 17 Mich. 511, 97 Am, Dee. 203; Durham v. Heaton, 28 111. 264, 81 Am. Dec. 275; Perris v. Carlton, etc., 8 Phila. (Pa.) 549; Sommers v. Allen, 44 W. Ya. 120, 28 S. E. 787; Tanner etc. Engine Co. v. Hall, etc., 22 Fla. 391; Palmer v. Bosher, 71 N. C. 291; Leavitt etc. Co. v. Rosenberg Bros. & Co., 83 Ohio St. 230, 93.N. E. 904.) “A fatally defective attachment affidavit cannot be amended, but the plaintiff must begin de novo.” (Northern Neck State Bank v. Gilbert Packing Co., 114 Ya. 658, 77 S. E. 451.) The affidavit of the plaintiff was admittedly bad, in that it recites “that the payment of the same is not secured by any mortgage, etc.” Could this defect be cured by amendment? At an early date, and before there was any statutory provisions to rely on, the right to amend the undertaking and affidavit of attachment was recognized. (Pierse v. Miles, 5 Mont. 549, 6 Pac. 347; Langsiaff v. Miles, 5 Mont. 554, 6 Pac. 356.) The last case above cited was approved in the case of Magee v. Fogerty, 6 Mont. 237, 11 Pac. 668. This question apparently comes before this court at stated intervals, as it next appears in the case of JosepM v. Mady Clothing Co., 13 Mont. 195, 33 Pac. 1. It was contended in this case that the defects in the affidavit were jurisdictional. The court said: “Passing the question of whether the affidavit was originally sufficient, we feel satisfied that the tendency of the decisions of this court is that such an affidavit may be amended.’-’ (See, also, S. C. PLerbst Importing Co. v. Kogan, 16- Mont. 384, 41 Pac. 135.) The appellants have cited a number of cases as supporting their contention that the affidavit for attachment could not be amended in '"this case. -In many states no provisions are made for amending the affidavit of attachment, and their courts have not seen fit to adopt the same liberal policy that our supreme court adopted even before specific statutes were enacted. Therefore, before adopting the holding of the cases cited by defendant, the existence not only of a similar state of facts, but of a statute similar to ours, should be shown. California adopted one policy in the case of Pajaro Valley Bank v. Scurich, 7 Cal. App. 732, 95 Pac. 911, and then after the amendment of 1909, which provided for • amending affidavits of attachment, the policy was changed in the case of Nichols v. Davis, 23 Cal. App. 67, 137 Pac. 41.