Wallace v. Lewis

De Witt, J. Section 200 of the Code of Civil Procedure is as follows: “The defendant may also, at any time before the time for answering expires, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or the judge thereof, that the attachment be discharged on the ground that the writ was improperly issued.” This statute is interpreted that the time in which the application [403] must be made “refers to the time in which the defendant shall appear and answer the summons.” (Vaughn v. Dawes, 7 Mont. 362.) That is, if the summons be served on defendant in a district other than the one in which the action is brought, he must appear within forty days. Defendant Lewis might then make the application before or on January 11th. Defendant Vauglm had until January 21st. The application was heard by Judge Hunt, January 15th. This was within the statutory time as to defendant Vaughn, whatever may have been the situation of Lewis. When Judge Hunt denied the application, “without prejudice” as to a renewal before Judge Henry, he did not purport to extend the time in which defendants might make the application, which time was fixed by the statute, and the construction thereof in Vaughn v. Dawes, supra. The ruling simply relieved the defendants from the possibility of a charge of contempt of court in making a second application to another judge. Conceding that the effect of the words “without prejudice” was to leave the defendants as they were before the hearing before Judge Hunt, it was to preserve their privileges existing when they went into the First District Court, not to enlarge them, or create new ones. (See Ford v. Doyle, 44 Cal. 635; Bowers v. Cherokee Bob, 46 Cal. 285; Kenney v. Kelleher, 63 Cal. 443; §§ 551, 552, Code Civ. Proc.) In this view the defendants were therefore, on January 17th, in the same position as if they had never moved for a dissolution of the attachment. We find that they take no steps whatever until the application to Judge Henry, March 5th. Our statute, section 482, Code of Civil Procedure, defines a motion as follows: “Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” The statute of California is identical. (Prac. Act Cal. § 515; Code Civ. Proc. Cal. § 1003. See, also, Jenkins v. Frink, 27 Cal. 339.) In People v. Ah Sam, 41 Cal. 650, Temple, J., interprets the above law as follows: “ A motion is properly an application for a rule or order, made viva voce to a court or judge. It is distinguished from the more formal applications for rélief by petition or complaint. The grounds of the motion are often [404] required to be stated in writing, and filed. In practice, the form of the application itself is often reduced to writing, and filed. But making out and filing the application itself is not to make the motion. If nothing more were done, it would not be error in the court to entirely ignore the proceeding. The attention of the court must be called to it. The court must be moved to grant the order.” We adopt these views with the modification that we do not consider that the learned judge used the words viva voee in their exact literal signification. The application might be submitted to the court without argument or comment; but the attention of the court must be called to it in some way, by some movement of counsel. As the opinion cited says, “the grounds of tbe motion are often required to be stated in writing, and filed.” Without express direction, such is infinitely the better practice. The motion is thus preserved in the exact form which counsel desire to give it. It is then exempt from the dangers incident to journal entries and minutes, or even the transcription by stenographers and court clerks. But the motion itself is the application to the court. “ The court must be moved to grant the order;” and, when so moved, the proceeding is a motion. In this view, the defendants’ motion, in the case at bar, their application to the court for the order to discharge the attachment, was not made until March 5th. The latest date within which they could move was January 21st. They were too late. This rule is particularly applicable to motions to discharge attachments. The adjudicated cases uniformly hold that such motion should be made in limine. Our own statute, which is chary in granting powers to a judge in chambers, gives him authority to hear and determine this motion; presumably for the reason that it is a matter demanding instant decision, and not a delay until term time, which, under the judicial system in force in the Territory when the law was enacted, might be six months distant. Large amounts of personal property may be seized on attachment, and held at a constantly accumulating expense. The right to the attachment should be determined at once. The moving party may not file his motion in writing, and wait for months before moving the court. Such practice ■would open the gate to abuses incalculable. [405] It is not required to discuss the other matters presented on the appeal. The motion to discharge, on which the order was made, and from which the appeal is taken, was not made in time, and the order is reversed, with costs. Blake, C. J., and Haewood, J., concur.