First National Bank of Butte v. Boyce

Hunt, J. — It is conceded by counsel for the plaintiff bank that the defendant Brown had a legal right to intervene for the purpose of trying the issue between the plaintiff bank and the defendant Boyce, as to the amount due upon the note at the date of the commencement of the action by the bank against Boyce. But it will be observed by the statement of the facts, that upon the trial of the case the intervenor expressly admitted that the amount alleged to be due in the complaint of plaintiff" bank, less a payment of $1,927.60, allowed as a credit by the bank, was a just debt, and expressly declined to offer proof to sustain the averments of his complaint denying such indebtedness, or to contradict the testimony of the officer of the plaintiff bank. This issue of fact being therefore eliminated from the case, it is necessary to determine whether or not the other facts set forth in the intervenor’s complaint are sufficient to enable him to intervene in the action pending between the plaintiff bank and the defendant Boyce. We think not. The original suit of the plaintiff bank against — 172 — the defendant Boyce was still pending in the district court, and the original writ of attachment which had been issued iu that case was still in the hands of the sheriff of Silver Bow county, at the time of the second levy of such writ. It further appears that no rights intervened between the first levy and the second. The release or the surrender of the property seized under the first levy at the time of the assignment may have been such an abandonment of a lien by attachment that subsequent attaching creditors could claim prior liens had they instituted proceedings to establish such liens before the seizure by the sheriff under the second levy. But, according to the facts in this case, as they are pleaded, we are of opinion that by the actual taking under the second levy made by the sheriff there was created a valid and sufficient attachment lien in the bank’s favor. If the assignee had claimed the property, or if the defendant Boyce had, by appropriate proceedings, objected to the second taking under the original writ of attachment, different questions would arise. But, in the absence of fraud, we know of no reason which will prevent a second levy by attachment under an outstanding writ upon personal property for a just debt, where such property has once been taken but afterwards surrendered by mistake or otherwise, and where no other rights intervene, and where the legal owner interposes no protest against such second levy. It follows, therefore, from the facts set forth in the complaint of the intervenor, Brown, that after he had confessed the debt of Boyce to the bank, he no longer had an interest in the matter of litigation. He never claimed to be interested in the note; and the value of the goods seized being insufficient to more than satisfy the lien of the bank, which subsequent attachment was good, and prior to his, as intervenor, he cannot be said to have had an interest in the property to be affected by any judgment that might be rendered in the case. But upon another ground we think that the intervenor is precluded from f obtaining relief. He does not, by his pleading, positively affirm the assignment of Boyce to Porter, because to do so would compel the court to decide that he could only claim under its provisions. The result of this would be that his attachment would fall. Nor does he repudiate the — 173 — assignment because he pleads no facts sufficient to make it void or fraudulent. True, the plaintiff bank, to justify its second levy, alleges that the assignment was fraudulent and void, in that the claim of one John H. Curtis for $15,000 was not a just debt; but by replication the intervenor denies that the deed of assignment was fraudulent or void as to the plaintiff bank “by reason of any fraudulent provision therein concerning one John H. Curtis, or any other person.” Thus the in-tervenor seeks to force the bank into accepting the provisions of an assignment which he, as a bona fide creditor, expressly declined to accept, yet positively refused to attack. We think a reasonable construction of the complaint of the intervenor is, that by a failure on his part to assail the assignment, he has treated it, for the purposes of his intervention, as honest and fair, and, by such confession, under the rule laid down in the case of Elling v. Kirkpatrick, 6 Mont. 119, he stands in no position to demand an attachment against his debtor, or to intervene in the suit between the plaintiff bank and defendant Boyce. The allegation of collusion, conspiracy, and fraud between the bank, Boyce, and the sheriff, is a conclusion not sustained by averments in the pleading. The mere fact that the assignee was under the direction and in the employ of the bank is, by itself, not a fraud; nor is there any wrong charged against the sheriff, other than the several seizures and surrenders alleged to be void and irregular; nor are there any facts, other than the acts herein discussed, from which conspiracy or collusion can be legitimately inferred. We think the court properly sustained the objection of the plaintiff bank to the testimony offered, and that the intervenor was justly denied relief. After judgment, which was entered July 23, 1891, appellants, by motions made to the court, asked that all cost bills, and more particularly the cost bill filed July 21st by the sheriff, be stricken from the record, for the reason that no cost bill was filed by plaintiff bank, or by any other person, within the time provided by law. A motion was also made to retax costs, on the ground that the plaintiff did not deliver to the clerk of the court, within two days after the decision of the court, or at any other time, any memorandum of its costs and necessary — 174 — disbursements, and to vacate and amend the judgment as to costs taxed against the intervenor upon the same grounds mentioned in the former motion relating to costs, and upon the further ground that the sheriff’s fees were excessive. The motion to retax costs was sustained in part and overruled in part. The motions to strike the memorandum of costs from the records were denied, to which ruling exception was duly taken. Without further discussing the insufficiency of the pleading of the intervenor to gain a standing in the court, or of the form of his denial on information and belief of any greater indebtedness to plaintiff than $35,000, we fail to see how the intervenor can escape payment of costs which he directly caused to be incurred. The reduction in the amount claimed was voluntarily made by the bank, and proved to have been a payment after suit was commenced. In addition to this the intervenor admitted on the trial that Boyce & Co. justly owed plaintiff more than $62,000, and that the property attached was not worth more than $60,000; so that a reduction of $1,927.60, even if made by the instrumentality of the intervention^ could not possibly be of advantage to the inter-venor. Appellants next contend that plaintiff was obliged to file a memorandum of its costs and sheriff fees as required by section 507 of the Code of Civil Procedure, which is as follows: “The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court, within two days after the verdict or decision of the court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.” Respondent argues that it was unnecessary to file the memorandum, under section 508 of the Code of Civil Procedure: “But such memorandum need not include the legal fees or costs of any officer of the court, or any witness fees when an affidavit of such witness’ attendance is required by law to be made.” Construing these two statutes, it seems clear that the legal — 175 — fees and costs of any officer of the court need not be verified by the party or his attorney, and need not be included in any memorandum required to be filed by the prevailing party. (Bank v. Neill, 13 Mont. 377.) It is the intention of the statutes that officials of the court shall file and be responsible for their own legal fees and taxable costs; and unless such fees and costs are correctly charged, a penalty may be imposed. A litigant is relieved from including them in his sworn memorandum, and, unless he wishes to assume them as his own, and to incur the risk of vouching for their correctness, the better practice is to omit them. (First Nat. Bank v. Neill, 13 Mont. 377.) The remaining point is whether a sheriff’s expenditures, such as rent bills, keepers’ fees, gas bills, water rents, fuel bills, and such other disbursements as are often necessarily made in levying attachment writs, are the officers’ legal costs which need not be included in the party’s verified memorandum, or are costs or disbursements which should be so included. The general practice of our courts has been for sheriffs to tax, as part of their costs, their disbursements in levying attachments upon .personal property and safely keeping the same. It would be well nigh impossible oftentimes for an attaching creditor to keep informed of the expenditures of the sheriff, and to know whether his disbursements have been necessarily made. All these duties properly belong to the sheriff, and in their performance his necessary disbursements become legally taxable costs for which he is entitled to be reimbursed. This view is reasonable and based on a fair interpretation of the statute under consideration. There may be various costs and necessary disbursements frequently incurred by parties in suits of which no record would appear, unless they were included in the verified memorandum required by section 507; and it is such costs which can be recovered by filing the sworn statement contemplated by the statute. It is proper to note that sections 508 and 509 of the code are taken from the act of February 16, 1877, which was passed after the decision of the supreme court in the case of Orr v. Haskell, 2 Mont. 350. — 176 — The district court, in the case at bar, revised and reduced the sheriff’s bills, and ordered a fee of $25 taxed against him for including items to which he was not entitled. This was in strict pursuance of the statutes, and well illustrates the application of the law holding the sheriff responsible for great care in his expenditures. The judgment is affirmed. Affirmed. Pemberton, C. J., and De Witt, J., concur.