Northwestern Wheel & Foundry Co. v. Salt Lake City Copper Manufacturing Co.

Smith., J.: This was an action for money due upon a contract, and was commenced on December 1, 1894. A writ of attachment was regularly and properly issued and delivered to the sheriff of Salt Lake county for service. On the 3d day of December, 1894, as shown by his return, the sheriff levied this writ upon one Corliss engine, complete, one Howe scale, and 24 ore cars, all of which the sheriff, as shown by his return, siezed as personal property, and left in charge of a keeper. On January 15, 1895, the defendant served on plaintiff's attorneys a notice as follows: “You are hereby notified that upon the records and files-herein, and -upon the affidavit of John W. Flintham, copy of which is herewith served upon you, and upon other affidavits to be hereafter prepared and served, and upon oral testimony to be introduced at the hearing, the defendant will, on Saturday, January 26, 1895, at 10 o'clock A. M., of that day, or as soon thereafter as counsel can be heard move the court to dismiss the attachment of the property made herein, and to release all property attached from the-operation and effect of the levy or attempted levy made under the writ of attachment issued herein on December 1, 1894." This motion came on for hearing on March 9, 1895, and the attorneys of the plaintiff appeared, and objected to the court taking testimony, or making any order in the premises, for the reason that the court had no-jurisdiction to hear the matters raised by the motion, and for the reason that the motion did not come within any statutory ground authorizing the discharge of attached property upon motion. The court overruled the objections- and proceeded to hear the motion, to which plaintiff excepted, and, after hearing, made the following order, after-reciting the history of the proceeding: “ That of the property described in said return the one Howe scale, United States standard, the twenty-four new eighteen-inch ore [412] •cars, and the one Corliss engine complete, were fixtures at the time of said levy, attached to and appurtenant to the real estate belonging to said defendant company on said date, and were not subject to attachment as personal property, and therefore the said levy of said writ of attachment on said property above described be, and the same is hereby, discharged, and vacated.” To this order plaintiff duly excepted. There are no findings of fact other than such as are included in this order. An examination of the evidence shows that the property .attached was machinery and appliances intended to be used in the construction of a certain copper refinery in •course of erection at Salt Lake City; that this attached property had been shipped to and unloaded on the premises of the defendant, but no part of it had been put.in place, and it was practically all of it in the boxes and shipping cases, just as it was unloaded from the cars. We •do not deem it necessary or proper in this case to give •our own opinion as to whether property so situated had become a part of the real estate or not, because we are ■clearly of opinion that such a question cannot properly be •determined upon motion, as was done in this case. • There was no objection to the writ of attachment, or the bond -and.affidavit upon which it issued. The whole controversy was that the sheriff had seized as personal property certain machinery which the defendant claimed was real estate; .and, as we have seen, the court, taking the defendant’s view of the matter, directed that the levy be discharged. We know of no authority for the court or judge to direct 'the sheriff or other ministerial officer how to make his levy, or what property he should levy upon. If the court •can lawfully give such direction, who would be responsible for a wrongful levy, or a wrongful failure or' refusal to levy? The court could not ordinarily be held responsible .for it, for, if lawful, it is the exercise of a judicial [413] power. The sheriff certainly ought not to be responsible, ior he would be acting in obedience to the commands of the court. We are clearly of opinion that questions of the-character raised by this motion can only be tried in an action duly instituted, where the parties, by appropriate pleadings, may tender issues of fact, and upon which atrial may be had, findings made, or verdict rendered, as the case may require. This motion, and all motion» of like character, are usually determined largely upon affidavits, without opportunity for cross-examination. We-cannot give our consent to such a practice, and we find no warrant for such practice in the Code of Civil Procedure. We hold that section 302G, vol. 2, Comp. Laws, does not authorize it. Nor is the authority for it to be found in that somewhat hazy field of jurisprudence known as the “ inherent power of the court. ” In coming to this-conclusion, we are not without authority to support us. See Mason v. Lieuallen (Idaho), 39 Pac. 1117. Some question was made on the argument to the effect that the sheriff, having left the property on the premises-for an unreasonable length of time after levy, had made himself a trespasser. If the defendant in good faith makes-this claim, it should sue the sheriff as a trespasser, and then a jury, after hearing the evidence, and under instruction as to the law, will give redress, if defendant is-entitled to it. We think the order discharging the levy of the attachment should be, and it is hereby, reversed, and set aside, and this cause is remanded, with directions-to the court below to fully reinstate the attachment; the appellant to recover the costs of this appeal. BaRtch and KiNG, JJ., concur.