Mason, Ehrman & Co. v. Lieuallen

HUSTON, J. This is an appeal from an order of the judge of the second district, made at chambers, dissolving an attachment. On the fourth day of October, 1894, the plaintiffs commenced suit against the defendant, in the district court for Latah county, and caused an attachment to be issued, which was levied upon certain real estate of defendant in said county. On the 24th of October, 1894, defendant served upon plaintiffs’ attorneys á notice of .motion to dissolve the attachment, which motion was noticed to be heard before the judge of said district at chambers, on the twenty-ninth day of October, 1894. Said motion was heard by the judge of said district, at chambers, on the twenty-ninth day of October, 1894, and an order made and entered on that day dissolving the attachment. The hearing was had upon affidavit, solely, and the order dissolving the attachment was dated October 1st. Why this impossible date was'affixed to the order is not apparent. The only ground upon which a court or judge is authorized to discharge • an attachment, under the statutes of Idaho, is that the writ has been “improperly or irregularly issued.” (Idaho Eev. Stats., sec. 4321.) It does not appear that the writ in this case was either “improperly or irregularly issued,” the sole contention being that the property upon which the writ was levied was exempt from levy. We have carefully examined every case cited by respondent, and find none of them in [417] point. They are all eases involving the regularity of the issuance of the attachment. These proceedings aie statutory, and, before a decision can be accepted as in point, it must be made to appear that the question decided arose upon a statute similar to our own. In the case of Windt v. Banniza, 2 Wash. 147, 26 Pac. 189, cited by respondent, the motion to dissolve the writ was based upon two grounds, as cited in the opinion of the court: “1. That the affidavit in the said cause is insufficient upon its face] and 2. That the grounds for said attachment alleged in said affidavit are not true.” The statute of Washington is similar to our own. The case of Baer v. Otto, 34 Ohio St. 11, arose upon an attachment issued by a justice of the peace, and the questions involved were the authority of the justice to hear and determine the motion to discharge the writ, and whether the decision of the justice thereon was reversible on error. In Hamilton v. Johnson, 32 Neb. 730, 49 N. W. 703, the only question involved was the regularity of the issuance of the attachment; the court deciding that the record showed no grounds for its issuance. In Guest v. Ramsey, 50 Kan. 709, 33 Pac. 17, the motion to dissolve attachment was heard before the court and in term time. The court says in that case: “The motion having been heard by the court, the objection that it was taken up by the judge at chambers without reasonable notice falls.” It will be seen that none of these eases involve the questions under consideration in the cause at bar, and the same may be said of all the eases cited by respondent. In the ease of Quigley v. McEvony, 41 Neb. 73, 59 N. W. 767, which is the only case cited where the questions decided are similar to those involved in the case under consideration, the court says: “We do not think it is competent or proper practice, where the writ is levied upon real estate belonging to the debtor, to allow the homestead character of the property to be drawn in question as one of the grounds for the motion to discharge the attachment. The hearing is upon affidavits more or less skillfully drawn, according to the ability, or lack of the same, in this particular branch, of the party who frames them, or his artistic skill, or want of it, in the affidavit line. We think it is unquestionable that the question of whether the premises constitute a homestead should be [418] determined in proceedings instituted In the manner directed by our statutory law, and, if there is any disagreement, then-the same can be determined in a proper action in court, in which issues can be regularly joined, and the matter tried in .the manner prescribed for the trial of issues of law and fact; and that the ends of justice will be better subserved by this, latter course of proceedings than by determination of the homestead question in the course of a hearing on a motion to discharge an attachment.” With this conclusion we fully concur. The statutes of Nebraska do not, as do those of Idaho, limit the grounds upon which a motion to discharge an attachment may be based, to its irregular and improper issuance. There are various other questions suggested'by the record and by the briefs of counsel, but, 'as this is decisive of the case, we do not deem it essential to consider them. The order of the district judge discharging the attachment ■ is reversed, and the cause remanded, with costs to appellants.. Morgan, C. J., and Sullivan, J., concur.