American Commercial Co. v. Randolph

North Dakota Supreme Court

American Commercial Co. v. Randolph

191 N.W. 779, 49 N.D. 476, 1922 N.D. LEXIS 79

DecidedDecember 30, 1922

StatusPublished

This text of 191 N.W. 779 (American Commercial Co. v. Randolph) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Commercial Co. v. Randolph, 191 N.W. 779, 49 N.D. 476, 1922 N.D. LEXIS 79 (N.D. 1922).

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Opinions

RobiNsoN, J.

In this action plaintiffs sue to recover $18,000. They have levied an attachment on lands and on property which appear amply sufficient to secure their claim. The property is in Stutsman county and in Barnes county. In Barnes county, as shown by the inventory of the sheriff, they have levied on 2,168 acres, worth $65 an acre, amounting to $140,940.50; also, crops on said land, $12,300; live stock, $33,000; farm machinery, plows, tractor, threshing outfit and such like, $12,000. The plaintiff obtained an order for the sale of the live stock, including a herd of pure bred shorthorn cattle valued at $39,500 and a herd bull, $10,000. Regardless of any prior liens and claims, it does appear reasonably certain that the property is amply sufficient, and more than sufficient, to secure the plaintiff’s claim. Then they have levied an attachment on a large amount of other property in Stuts-man county. Defendant appeals from an order directing the sale of the live stock under Comp. Laws, § 7554, and also from an order of November 8, 1922, refusing to vacate the first order. Both orders were made on the pleadings and proceedings and on numerous affidavits [477]*477whick fairly show that on tlie trial of the case the claim of plaintiff may bo reduced a considerable amount and that the property attached is ample security for any judgment which plaintiff may recover. Indeed, it locks like an excessive levy. The live stock is not perishable property. It is on defendant’s farm in Barnes county, where there is ample feed for the same. With good care the live stock will continue to increase in value and the increase in value should bo more than the expense of the food and care. There is really no apparent object in forcing the sale of the live stock before judgment, unless to give some one a chance to buy the property at a nominal price. The court will fake official notice of the fact that there is now a financial stringency; that, responsible men find it difficult to borrow $10,000, and it is still more difficult for a debtor to borrow when his property is attached. The ilerchant of Venice was accounted a rich man, and still he found it impossible to borrow three thousand crowns till his three ships came 'into port richly laden. Furthermore, this is no time to expose for sale any such large and splendid herd of pure-bred stock. Such a herd might be given away or sacrificed, but not sold at any reasonable value. The purpose of the attaching statute is to give the creditor a fair security for payment of such a judgment as he may recover, not to permit him to use the process of the law as a means of oppression by sacrificing attached property. Indeed, in this case it appears to the writer that it is hard to conceive that a creditor should have the nerve to attach so much property and then to ask an order for the sale of such a splendid herd of pure-bred live stock. It is high time for creditors to learn that debtors have some rights which both they and the courts are bound to respect.

Both orders are reversed.

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RobiNsoN, J.

In this action plaintiffs sue to recover $18,000. They have levied an attachment on lands and on property which appear amply sufficient to secure their claim. The property is in Stutsman county and in Barnes county. In Barnes county, as shown by the inventory of the sheriff, they have levied on 2,168 acres, worth $65 an acre, amounting to $140,940.50; also, crops on said land, $12,300; live stock, $33,000; farm machinery, plows, tractor, threshing outfit and such like, $12,000. The plaintiff obtained an order for the sale of the live stock, including a herd of pure bred shorthorn cattle valued at $39,500 and a herd bull, $10,000. Regardless of any prior liens and claims, it does appear reasonably certain that the property is amply sufficient, and more than sufficient, to secure the plaintiff’s claim. Then they have levied an attachment on a large amount of other property in Stuts-man county. Defendant appeals from an order directing the sale of the live stock under Comp. Laws, § 7554, and also from an order of November 8, 1922, refusing to vacate the first order. Both orders were made on the pleadings and proceedings and on numerous affidavits [477]*477whick fairly show that on tlie trial of the case the claim of plaintiff may bo reduced a considerable amount and that the property attached is ample security for any judgment which plaintiff may recover. Indeed, it locks like an excessive levy. The live stock is not perishable property. It is on defendant’s farm in Barnes county, where there is ample feed for the same. With good care the live stock will continue to increase in value and the increase in value should bo more than the expense of the food and care. There is really no apparent object in forcing the sale of the live stock before judgment, unless to give some one a chance to buy the property at a nominal price. The court will fake official notice of the fact that there is now a financial stringency; that, responsible men find it difficult to borrow $10,000, and it is still more difficult for a debtor to borrow when his property is attached. The ilerchant of Venice was accounted a rich man, and still he found it impossible to borrow three thousand crowns till his three ships came 'into port richly laden. Furthermore, this is no time to expose for sale any such large and splendid herd of pure-bred stock. Such a herd might be given away or sacrificed, but not sold at any reasonable value. The purpose of the attaching statute is to give the creditor a fair security for payment of such a judgment as he may recover, not to permit him to use the process of the law as a means of oppression by sacrificing attached property. Indeed, in this case it appears to the writer that it is hard to conceive that a creditor should have the nerve to attach so much property and then to ask an order for the sale of such a splendid herd of pure-bred live stock. It is high time for creditors to learn that debtors have some rights which both they and the courts are bound to respect.

Both orders are reversed.

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Bluebook (online)

191 N.W. 779, 49 N.D. 476, 1922 N.D. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-commercial-co-v-randolph-nd-1922.