Howard v. Grimes Pass Placer Mining Co.

AILSHIE, J. This is a controversy which arises between certain creditors of the Grimes Pass Placer Mining Co. The appellant commenced an action and sued out a writ of attachment and caused the property of the company to be attached. Within sixty days after the posting and publication of the notice of attachment, certain other creditors commenced their actions against the debtor but did not secure judgments within sixty days after the posting and publication of the notice of attachment. The court allowed all creditors to prorate with the attaching creditor in the distribution of the proceeds of the sale of the attached property where they commenced their actions within sixty days after the posting and [15] publication of notice of the attachment, although judgments were not obtained until more than a year thereafter. The only question here involved is the construction of that portion of sec. 4304 of the Rev. Codes, which reads as follows: “Any creditor of the defendant, who, within sixty days after the first posting and publication of such notice, shall commence and prosecute to final judgment his action for his claim against the defendant, shall share pro rata with the attaching creditor in the proceeds of defendant’s property where there is not sufficient to pay all judgments in full against him. ’ ’ The respondents contend and the trial court held that the foregoing provision of the statute only requires that the action be commenced “within sixty days after the first posting and publication of such notice,” and that if judgment is at any time thereafter procured in an action so commenced, the judgment creditor will be entitled to pro-rate in the proceeds of the attached property. The appellant, on the other hand, contends that under this statute in order to entitle a creditor to pro-rate with the attaching creditor, he must commence his action and prosecute the same to final judgment within sixty days after the first posting and publication of the notice. A statute written in the plain and ordinary language in common every-day use, dealing with a subject that is neither technical nor scientific, should be construed as the ordinary reading public would read and understand it. In speaking of the rule that should be applied in construing a statute that does not employ technical language, this court in Be Bossner, 18 Ida. 519, 110 Pac. 502, said: “It is a well-established rule of law that when words have not a technical meaning or application, o<r when they have not been so used or employed in the statute, they should then be given their ordinary significance as they are popularly understood. ' We must construe the language here used by the legislature in the light of the popular and common acceptation of the terms there employed.” Applying this rule to the foregoing statute, there [16] can be but little or no doubt as to its meaning. The creditor must “within sixty days after the first posting and publication of such notice .... commence and prosecute to final judgment his action,” etc. The words “within sixty days” refer to both the words “commence” and “prosecute,” and the prosecution must be to “final judgment.” It is not enough that the creditor commence his action “within sixty days,” but he must prosecute his action to “final judgment within sixty days. ’ ’ It would be an unreasonable and strained construction to hold that the “within sixty days” refers only to the word “commence” and that the words “prosecute to final judgment” are unmodified and unlimited as to time and that any time will do. It is argued, however, in opposition to the foregoing construction, that if such actions must be prosecuted to final judgment within sixty days, that it will require an impossibility in many cases where the action must be brought in the district court. It is suggested that there are only two terms of court a year in many of the counties, and that where an action is contested, it would be impossible in many.instances to procure a judgment within the sixty-day period. That may all be true, and still it does not change the language employed by the legislature in this section. The legislature undoubtedly had in mind the prevention of the issuance of a great many writs of attachment and also speedy action in such cases, and so it was intended that all persons who commenced and prosecuted their action to final judgment within sixty days should have the benefit of the first writ issued. It should be remembered that judgments can be procured in the justice and. probate courts up to the maximum of $500 and costs, and that those courts are always open, so that it would be possible for all of the smaller claims to be prosecuted speedily in such courts. The question as to the validity of this statute has not been briefed or argued and does not arise in the present case, for the reason that no judgments were obtained within sixty days, and so we express no opinion as to the validity of the statute. We hold, however, that an action by a creditor who has not [17] prosecuted his claim to final judgment "within the sixty-day period does not come within the contemplation of the statute as the same has been enacted and was evidently intended. The judgment is reversed and the cause is remanded with directions to the trial court to take such further proceedings as may be consistent with the views herein expressed. Costs awarded in favor of appellant. Sullivan, J., concurs.