Foore v. Simon Piano Co.

AILSHIE, J. (After Stating the Facts.) — ~We shall consider the errors assigned in the order in which they are presented in the brief. (1) Failure to find on all material issues. The findings of the court cover all the issues that were essential to the final determination of this case. It was unnecessary for the court to find on questions which would not influence or affect the judgment to be entered. (Brown v. Macey, 13 Ida. 451, 90 Pac. 339.) (2) Falsity of the affidavit for attachment. It is contended by appellant that the affidavit for attachment in the original action was false and that the court had no jurisdiction to issue the writ. On this question there was a conflict of evidence, and the trial court found in favor of the defendant and that the sum alleged in the affidavit was in fact due at that time. This sufficiently disposes of that question. It is doubtful, however, if the truth of the affidavit — 174 — in that respect could be inquired into at this time and in this manner. (3) Attachment cannot be had by vendor who retains title. It is contended by appellant that under the conditional sale contract the piano company retained title to the “Apollo’* until the final payment should be made, and that under the statute of this state he could not have a writ of attachment until he had exhausted his security or the same had become valueless without any fault of the company. (Mark Means Tsf. Co. v. McKenzie, 9 Ida. 165, 73 Pac. 135; Barton v. Groseclose, 11 Ida. 227, 80 Pac. 623; Peasley v. Noble, 17 Ida. 686, 107 Pac. 402.) This position is correct as to a resident defendant but is not applicable to the facts of the present case. This was an action against a nonresident, and the attachment was sought on the ground that the defendant in the case was a nonresident of the state. Under the provisions of our statute, sees. 4302 and 4303, Rev. Codes, an attachment may be had “against a defendant not residing in this state” in an action upon a “judgment or upon contract, express or implied,” and in such ease it is not necessary to show that the plaintiff has no security. In other words, the provisions of subd. 1 of both sections 4302 and 4303 do not apply to a nonresident defendant. (Kerns v. McAulay, 8 Ida. 568, 69 Pac. 539; Ross v. Gold Ridge Mining Co., 14 Ida. 687, 95 Pac. 821; and Kohler v. Agassiz, 99 Cal. 9, 33 Pac. 741.) In Kohler v. Agassiz the supreme court of California in passing upon the requirements of sec. 537 of the Code of Civ. Proc. of that state, which is in the same language as sec. 4303 of our Rev. Codes, said: “As against a nonresident defendant, the affidavit need not show that the payment of the claim is not secured by mortgage lien or pledge.” (4) Name of attorney in published summons. It is next insisted by appellant that the alias summons as published did not contain the name of the attorney for the plaintiff as the same had been “indorsed on the summons.” Subd. 5 of sec. 4140 of the Rev. Codes provides as follows: “The name of the plaintiff's attorney, with his post175 office address or residence, must be indorsed on the summons.”' It is conceded that the summons published did not show the name of the attorney for the plaintiff as required by this: provision of the statute. We think this requirement of the statute is directory rather than mandatory. The name of the attorney indorsed on the summons is not properly a part of the summons itself. Its only purpose is to advise the defendant of the name of the attorney who appears for the plaintiff' and his residence or postoffice address. It is no part of the cause of action. The language of the statute would imply that the name is to be written across the back of the summons instead of appearing on the face thereof. The statute does not require the indorsements on the summons to be published. It only requires the summons to be published. It would be-a proper practice, and is one that should be followed, to have the name of the attorney appear at the bottom of the published summons, but the failure to do so is not jurisdictional and is not fatal to the service. (People v. Wrin, 143 Cal. 11, 76 Pac. 646; McKnight v. Grant, 13 Ida. 629, 121 Am. St. 287, 92 Pac. 989.) (5) Was the judgment in the attachment suit void? We answer this question in the negative. It is argued' by appellant that the judgment obtained by the piano company against appellant here amounted to taking his property in violation of the fourteenth amendment to the federal con-. stitution, in that it deprives him of his property without “due process of law.” This contention is without merit for the reasons hereinbefore set forth. While no personal service was had on the defendant in that action, a constructive service ■ was had, and the attachment proceeding laid hold upon the property and the action in rem against the seized property was in conformity with the statute. The court acquired’ jurisdiction over the property thus seized, and while it could enter no personal judgment against the defendant, it could reach out with its process and subject the property within its jurisdiction to the payment of the indebtedness shown to exist. (Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Kerns v. McAulay, 8 Ida. 558, 69 Pac. 539.) — 176 — (6) Failure of clerk to give notice of attachment. It is contended by appellant that the failure of the clerk of the district court to give notice, by posting and publishing, of the issuance of the writ of attachment, as provided by sec. 4304 of the Rev. Codes, was fatal to the attachment and that no jurisdiction was therefore acquired in the attachment proceeding. The statute does not require that this notice issue contemporaneously with the writ of attachment. On the contrary, it provides as follows: “Two days after issuing such writ and delivering it to the proper officer, the clerk must post at the front door of the court-house, and cause to be published in some newspaper .... a notice,” etc. This notice is not issued to the defendant in the attachment proceedings nor is it for his benefit. The notice is not essential to give the writ validity and binding force. This notice is required solely in the interest of creditors of the defendant. The closing sentence of sec. 4304 indicates clearly this intention and provides the things to be done by any creditor who shall desire to “pro-rate with the attaching creditor.” The statute requires that notice of the attachment be served upon the county recorder and that a copy thereof be also delivered to the party in possession of the property, or if there is no one in possession that it be posted on the land. (Sec. 4307, Rev. Codes.) This is the notice required to be given for the benefit of the defendant in the attachment proceedings whose property is seized. The presumption of law is that the party in possession is the representative of the defendant who is the owner of the land, and that notice to him that the land is attached will reach the owner. (Pennoyer v. Neff, supra.) The defendant in the attachment proceeding is in no way injured or prejudiced by failure to post and publish the notice of attachment. Creditors of the defendant in the attachment proceedings, for whose benefit the notice is required to be given, are not complaining, and we take it .that they are the only persons to be affected by failure to give such notice. (7) Excessive levy. It is argued by appellant that the writ was levied on an excessive amount of property and that it was so dispropor — 177 — tionate in value to the amount of the debt sought to be secured that it avoided the writ. This contention cannot be sustained. The evidence does not disclose the value of the property at the time of the levy, and the only evidence as to the value of the land at the time of the sheriff’s sale is the return on the execution, which shows that the highest and best bid received was $296.57. The fact that the appellant testified at the trial of this present action that the land was then worth from ten to fifteen thousand dollars is not sufficient to invalidate a levy made four years prior to that time. The mere fact that a large amount of property was sold to satisfy a small indebtedness is of itself not sufficient to avoid the sale, especially when attacked in this collateral way. (8) Validity of execution sale. Appellant contends that this entire tract of land, comprising 320 acres or eight forty-acre tracts according to government survey, was all sold in one body and on one bid. ■ He insists that under the provisions of sec. 4484 of the Rev. Codes this sale was void. The provisions of that section are as follows: “When the sale is of real property, consisting of several known lots or parcels, they must be sold separately, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thus sold.” This question was not presented by the pleadings and does not appear to have been raised in any manner in the lower court. It is now too late to raise it in this court. We may suggest in passing that it seems to us that the proper remedy would have been to move in the attachment suit in the lower court for an order vacating and setting aside the sale on the grounds indicated if the judgment debtor felt aggrieved by-reason of the sale having been made in the manner pointed out, and to have there called the trial judge’s specific attention to the failure to pursue the statutory method. The sheriff’s return on the execution recites that he “sold the whole” tract of land therein described to the Simon Piano Co. and that it was the highest and best bidder. This does not necessarily negative the idea that it may have been — 178 — offered or even sold in separate lots or tracts, or that if so offered no bids were received for the separate lots. It is clear that the judgment debtor did not avail himself of the right granted him by sec. 4484 of the code and “direct the order” in which the property should be sold. He had a right under the statute to require the sale to be made of specific tracts and to specify the order in which they should be sold. (9) Rights of foreign corporation to buy property at execution sale to satisfy judgment. It is insisted by appellant that since the Simon Piano Co., which is a foreign corporation, had failed to comply with the corporation laws of this state prior to the purchase of this real estate at execution sale, it is therefore precluded by see. 2792, Rev. Codes, from taking and holding title to this land. The first thing to determine is whether or not the corporation was at the time this debt was contracted ‘ ‘ doing business” within the state of Idaho within the meaning of the constitution (sec. 10, art. 11) or within the purview of see. 2792, Rev. Codes. There is a conflict in the evidence as to whether the sale of the “Apollo” was made in Spokane in the state of Washington or at Coeur d’Alene city in this state. The court finds that the sale was made in Spokane, and this finding is amply justified by the evidence. It does not appear from the evidence that the corporation had any office in this state at that time, or that it had any agency established within the state. It rather appears that such sales as it was making at that time were made through the Spokane office and delivery was made there, and such sales were clearly interstate transactions. (In re Kinyon, 9 Ida. 642, 75 Pac. 268; In re Abel, 10 Ida. 288, 77 Pac. 621; Belle City Mfg. Co. v. Frizzell, 11 Ida. 1, 81 Pac. 58; Toledo Computing Scale Co. v. Young, 16 Ida. 187, 101 Pac. 257.) Under the provisions of the statute (sec. 2792, Rev. Codes) it is only corporations that are “doing business in this state” without first filing their articles of incorporation and complying with the statute that are prohibited from taking and holding title to realty acquired prior to the making of such filings. The mere purchase at execution sale of real property in satisfaction of a — 179 — judgment procured on an interstate transaction is not in itself “doing business in tbis state.” (19 Cyc. 1280, and note, also 1314; Elston v. Piggett, 94 Ind. 14; Meddis v. Kenney, 176 Mo. 200, 98 Am. St. 496, 75 S. W. 633.) The legislature has not undertaken to prohibit a corporation engaged in interstate business from taking title under judicial process in the collection of a debt where the corporation was not otherwise ‘ ‘ doing business ’ ’ in this state within the meaning of the constitution and statute. The judgment should be affirmed, and it is so ordered. Costs awarded to respondent. Sullivan, C. J., and Stewart, J., concur.