Vollmer v. Spencer

Q.ITARLES, J. rlhe appellant, as plaintiff, sued the defendant on two separate notes, and filed an affidavit and undertaking for attachment to secure both debts, which attachment issued. Thereafter the respondent served notice of motion, based upon affidavit, to dissolve the attachment, upon the ground that the affidavit for attachment was false, in this: That it stated that the note for $200 (sued on in the second cause of action) had not been secured by any mortgage or lien upon real or personal property, or by any pledge of personal property, when in truth and in fact said promissory note was at the date it was made, executed, and delivered, secured by a chattel mortgage, and which motion was duly made. In support of his motion, the defendant served, and on trial introduced, his affidavit, showing that, on the date of the execution of said note, he executed and delivered to appellant a certain chattel mortgage upon three horses, one wagon0 and set of harness, to secure the said note, which mortgage was by the appellant duly filed for record, and recorded in Latah county, where it is still of record and unre [560] leased. The motion was heard and sustained, and the attachment dissolved, and from the said order this appeal was taken. On the trial of the motion, the appellant introduced a counter-affidavit (no other evidence), as follows: “Thomas H. Brewer, being first duly sworn, says: That he is the agent of the plaintiff in the above-entitled action for the purposes of this suit. That he has read the affidavit of E. J. Spencer on motion to dissolve the attachment herein, and, replying thereto, states that affiant is informed and believes from an inspection of a certain duebill, dated February 22, 1893, favor E. J. Spencer, signed by N. F. MeCumber, that two of the horses described in the affidavit of the defendant herein were sold by defendant, by and with the consent of plaintiff, on or about the twenty-second day of February, 1893. And affiant further says that he is informed and believes, and so alleges the fact to be, upon his information and belief, that none of the security mentioned in the affidavit of said E. J. Spencer was held as security for the said $200 sued on in this action at the time said action was commenced. And affiant further says that if any part thereof was in existence, that the same had become, long prior to the institution of this action, absolutely worthless, and of no value as security whatever. And affiant further says that the wagon described in the affidavit of E. J. Spencer was, at the time of the taking of the mortgage thereon, an old worn-out wagon, but in fair repair; and that' the same was thereafter used in hauling wood over the mountain roads from the home of said E. J. Spencer to Howell’s Siding; and that said wagon was long ago rendered absolutely worthless, and that it was not in existence as security at the time of the commencement of this action. And affiant further says that he is informed and believes, and so alleges the fact to be, that the one set of double breeching harness referred to in the affidavit of E. J. Spencer was long ago worn out from use; that the same was old and worn out at the time the mortgage was given thereon; and that, at the time of the commencement of this action, the same did not exist as security on this $200 note. And affiant further says that the remaining horse described in the affidavit of E. J. Spencer — one iron-gray mare, three years old, weight nine hundred pounds — was traded off [561] by the defendant long prior to the time of the commencement of this action, and that the same did not exist as security for the payment of the said $300 note at the time of the commencement of this action. Wherefore affiant avers that the said $300 was not secured at the time of the commencement of this action, and prays that the said attachment be not dissolved as to the said $300 note. [Signed] Thos. H. Brewer.” From these two affidavits it is manifest that the affidavit for attachment, so far as it relates to the second cause of action, was false, and did not comply with section 4303 of the Revised Statutes. When a mortgage has been given to secure a debt, and the creditor thereafter sues to recover debt, he must, in order to have the benefit of an attachment, state in his affidavit therefor that such mortgage was given, and “that such security has, without any act of the plaintiff,” or the person to whom it was given, become valueless. In such case it is not sufficient to say the plaintiff would have been entitled to the attachment if he had stated the facts, and that the defendant was not injured by his failure so to do. The statute requires the facts to be stated, and this requirement cannot be dispensed with, without abrogating a plain provision of a statute, which cannot be done by judicial construction. But the counter-affidavit above set forth shows that the plaintiff had security. It states that the defendant “traded off” one of the horses mortgaged. If this statement is true, such trade did not destroy the lien of the mortgage, and the plaintiff could foreclose against the purchaser. The defendant below having shown that the affidavit for attachment was faLse as to the second cause of action, the attachment should have been dissolved as to that cause at least. Query: Should it have been dissolved as to both causes of action? To entitle the plaintiff to an attachment, his debt must be due upon a judgment, or upon contract, express or implied, and one of three other facts must exist, viz.: The debt must have been unsecured by mortgage or lien upon real or personal property or pledge of personal property; or, if such security was given, that it has, without any act of the plaintiff, become vaiueiess; or that the defendant is a nonresident of the state. The statute requires the facts to be stated in the affidavit. In [562] tbe ease at bar tbe true condition as to tbe second cause of action was not stated in tbe affidavit; bence it was obtained contrary to law, wrongfully, and tbe plaintiff must not be permitted to reap any benefit from tbe writ. Tbe plaintiff must know whether bis debt is secured or not. He must know whether tbe security that has been given (if any was given) has become valueless without any act on bis part. And be1 must, whether he makes tbe affidavit in person or by agent, or by attorney, state tbe fact as it exists. It is said that all of our statutes must be liberally construed. This rule is enjoined upon us by statute, but it only applies where it is necessary to construe a statute. Tbe statute in this case is plain and unambiguous. It needs no construction. Tbe process of attachment is statutory and purely summary. By it, tbe debtor is deprived, without a hearing, of tbe possession of bis property. It is the universal rule, so far as we have examined, that tbe plaintiff must, in order to have tbe benefit of this statutory process, do everything required by the statute. Under our code, the rule of construction to be applied is this; If there is any uncertainty as to what tbe statute requires, construe the statute liberally, but tbe requirements or acts to be performed, when tbe statute is so construed, must be strictly performed. Tbe writ of attachment that issued was an entirety. Tbe officer levying it could not separate tbe amount due on one cause of action from tbe other by an inspection of tbe writ itself, and bis authority was wholly derived from tbe writ. ' No jurisdiction existed to issue tbe writ as to the second cause of action. Tbe plaintiff could have made and filed affidavit and undertaking on attachment in tbe cause as to each cause of action, and bad separate attachments to secure each. By pursuing this course, one attachment might be dissolved, and tbe other sustained. Tbe plaintiff bad tbe right to procure one attachment for both causes of action, if the statutory grounds therefor were truly shown to exist. Now, such statutory grounds were truly shown to exist as to one cause of action, and not to the other. The court could not segregate the writ of attachment and the levy made thereunder, so as to leave it in effect as to one cause of action only. The plaintiff, by fail [563] ing to comply with, our attachment law, brought about this condition — and like one who wrongfully commingles his goods with those of another, so that they cannot be separated with certainty, must suffer the consequences of his own act. To say that we will dissolve this attachment as to one cause of action, and not as to the other, would indirectly permit the plaintiff to have the benefit of it as to both causes of action. The judgment, if rendered in favor of plaintiff for the amount claimed on both causes of action, will be an entirety, as will be any execution thereon. The writ of attachment being an entirety, jurisdiction to issue it as to both of the causes of action must have existed at the time it issued. The court below properly dissolved the writ of attachment. The conclusion reached is fully supported, we think, by the decisions in Murphy v. Montandon, 3 Idaho, 325, 35 Am. St. Rep. 279, 29 Pac. 851; Willman v. Friedman, 3 Idaho, 734, 35 Pac. 37, and Fisk v. French, 114 Cal. 400, 46 Pac. 161. The order appealed from is affirmed. Costs of this appeal awarded to respondent. Huston, J., concurs.