Quillan v. Paine

Mayes, J., delivered the opinion of the court. On the 17th day of August, 1907, George C. Paine began a-proceeding in the justice of the peace court under section 3079,. Code of 1906,. for the purpose of subjecting certain personal property sold by him to one Jesse W. Howell to a debt for the-purchase money thereof, amounting to the sum of $195. On the same date one Henry M. Quillan, trustee in a deed in trust-executed by Howell in favor of Gilmore, May & Go. on the-property in-question, and wherein Quillan was made trustee, interposed as claimant of the property after condition broken. Jesse Howell waived service of process and consented that judgment be entered against him for the amount of the claim due by him to Paine. Issue was made up between the claimant and Paine, and the case tried in the justice court, resulting in a judgment in favor of Paine, condemning the property to be-•sold for the payment of the purchase money, and dismissing the-claimant’s issue. Prom this judgment an appeal was prosecuted to the circuit court by the claimant, and when the case [699] was called for tidal in the circuit court a motion was made to dismiss the appeal cf the claimant, on the ground that there was no.authority in law for the propounding of such claim in a proceeding of the kind instituted here. Section 3080 of the Code of 1906 provides that,'where a suit is brought by the seller of personal property to subject same to the debt for the purchase money thereof, the property shall be dealt with “as in the case of an attachment for debt,” etc. The effect of this reference is to incorporate into section 3080, providing the procedure to be followed by a seller of personal property when undertaking to subject same to a debt for the purchase money, all the provisions of chapter 9 in relation to attachment against debtors as may be necessary to afford a complete and clear remedy to all parties interested, if such remedy is to be found in the chapter referred to. Multiplicity of suits and complicated legal proceedings are always to be avoided, if there is any remedy in the law by which same may be done. When we turn to the chapter referred to in section 3080, we find that by section 163 of that chapter it is provided that “all the provisions of law in relation to third persons claiming property levied on by virtue of' 'fieri facias shall extend and apply to claimants of property levied on by virtue of attachment.” Section 163 cites section 4990 in relation to the trial of right of property. In section 4990 it is provided, “when any person not a party to the execution shall claim to be the owner of or to have a lien on any personal property levied upon, such person may make affidavit to his right or title to the property,” etc. It is thus seen that all of the sections of the code above quoted, in so far as same are applicable, may be used by a claimant of property, where the contest is between him and the seller thereof, in the same manner and to the same effect as if suit arose under an attachment proceeding. We think the court erred in sustaining the motion to dismiss the appeal, and the judgment is reversed and cause remanded.