Blumaur-Frank Drug Co. v. Branstetter

43 P. 575, 4 Idaho 557, 1895 Ida. LEXIS 78

Opinions

MORGAN, C. J.

On the fifth day of March, 1893, W. II. Ridenbaugh sold to T. D. Farrer and M. J. Rounseville, of the 'firm of T. D. Farrer & Co., a stock of drugs and fixtures then being and situated in the store building of the said Ridenbaugh, 'in Boise City, Idaho, for the sum of $5,000, and delivered same to said firm. In payment for said stock, said Ridenbaugh took 'the note of said firm for said sum, and, to secure the same, took ■a chattel mortgage on said stock of drugs and fixtures in said ■store. Thereafter, on the seventh day of August, 1893, said T. D. Farrer & Co., having in the meantime paid the said W. H. Ridenbaugh the sum of $2,000, gave to said Ridenbaugh a new note for the sum of $3,332,28, and, to secure the same, gave to •said Ridenbaugh a new mortgage on said stock, described as follows, to wit: “All drugs, medicines, bottles, eases, flasks, patent medicines, chemicals, wines, liquors, cigars, tobaccos, paints, •oils, brushes, glass, varnishes, soaps, toilet articles, toilet soaps, perfumes, trusses, suspensories, sponges, syringes, catheters, rubber tubing, combs, cutlery, compasses, spectacles and all’drug sundries; soda fountain, water glasses, fixtures and apparatus; •oil; file of prescriptions, and all medicinal pharmaceutical books, ■medical and unabridged dictionaries, price lists and catalogues; ■fixtures, show cases, prescription cases, counters, shelving, •stoves, writing desks, safe, scales, stepladder, hose, signs, elec'tric light fixtures, tools, sponges, sacks, all ornamental fixtures, •chairs, printed matter, paper sacks, motors, graduates, and medicine and merchandise; and, in fact, every thing and article •owned and used in and about said store room and place above described.” A portion of the drugs and other goods, except fixtures, had been sold before foreclosure proceedings, and the money used to purchase other goods in the ordinary course of trade. On November 15, 1893, the mortgagee, Ridenbaugh, gave the defendant, as sheriff of Ada county, an affidavit and notice of foreclosure of said mortgage, and for the sale of said stock, under sections 3390-3392 of the Revised Statutes of Idaho. On the 29th of November, 1893, the sheriff served this process levied upon the goods and fixtures, and took them into possession, and thereafter sold them under the mortgage. December 1, 1893, the respondent commenced an action against the said Farrer and Rounseville to recover $542 for goods sold to them between March 9, 1893, and August 1, 1893, and on said December 1st delivered an attachment in said action to said appellant, the sheriff, and orally requested the sheriff to disregard the mortgage, and take the property by virtue of the attachment. No indemnity bond was offered, and the sheriff had the goods in his possession under the foreclosure proceedings when he received the attachment. The sheriff levied the attachment subject to the chattel mortgage. The respondent recovered judgment against T. D. Farrer & Co., February 21, 1894. On the fifth day of December, 1893, the appellant sold said property at public sale, after due notice, to W. H. Ridenbaugh, the mortgagee, for $2,500, and delivered the same to him, and thereafter returned said writ of attachment nulla Iona. Thereupon the respondent commenced this action against said appellant, March 14, 1894. The action was tried by the court without a jury, and judgment rendered against the appellant, March 30, 1894, for said sum of $542, from which judgment the defendant appeals to this court.

In the case at bar, both parties concede that process good upon its face protects the sheriff even though founded on a void or irregular judgment. (See Idaho Rev. Stats., sec. 1882 (which is simply an enactment of a principle of the common law); Dusy v. Helm, 59 Cal. 188; Norcross v. Nunan, 61 Cal. 640; and many other authorities that may be cited.) Respondent contends, however, that affidavit and notice under sections 3390 and 3391 are not process, and that “process and orders,” as defined by section 1870, is the only kind of process known to our statute, and the only kind that will protect tEe officer, if fair upon its face. This definition includes, of course, attachments and executions by virtue of which goods may be levied upon and sold to pay debts. Section 1870 is as follows: “Process as used in this article includes all writs, warrants, summons and orders of courts of justice or judicial officers.” It will be seen that this section does not pretend to name all writings that may properly be denominated “process.” It only says the word “process” includes certain papers. It'may, notwithstanding section 1870, include many other papers not therein named. It is not claimed that the method pointed out in sections 3390 and 3391, and others thereto connected, is not a legal and constitutional method of foreclosing chattel mortgages. By virtue of this affidavit and notice, everything can be done, within its specified limits, that can be done under and by virtue of an execution. Section 3391 requires that the affidavit, together with a notice signed by the mortgagee, his agent or attorney, shall be delivered to the sheriff, requiring such officer to take the mortgaged property into his possession and sell the same. Section 3392 gives the officer directions how to proceed to serve the affidavit, and give the proper notice, etc. Section 3393 is as follows: “The officer [sheriff] must take the property into his possession and give notice of sale in the same manner and for the same length of time as is required in the cases of the sale of like property on execution and the sale must be conducted in the same manner.” Section 3394 states that the purchaser at such sale takes all the interest of the mortgagor in the property at the time of the execution of the mortgage, and the officer must execute to him a bill of sale of the property. Section 3395 requires the sheriff to make return on the affidavit of all his proceedings thereunder, and transmit the same'to the clerk of the district court. It is apparent that the affidavit and notice are as effectual, in tire sale of property mortgaged, and in the collection of the debt, in every respect, as an execution. The levy, taking possession, and sale must be made in the same manner; and the absolute and legal transfer from one person to another, and the collection of the money result. Where these papers are placed in the hands of the sheriff, and they are fair upon their face, he must proceed to execute them in the manner pointed out in the statute. The law requires it, and the sheriff has no alternative. It is, in fact and in law, a writ of execution in this proceeding, and for a neglect or refusal to execute which be would be liable to tbe creditors, as pointed out in section 1875 of the Bevised Statutes of Idaho. And the converse is true. It is process, in the execution of which the sheriff is protected. In this case the sheriff had levied upon and taken the property into his possession, by virtue of the affidavit and notice, before the attachment was placed in his hands. Having put his hand to the plow, he cannot hesitate, or turn back, upon the verbal instruction or request of the attaching creditor. In this respect the ease at bar differs from the ease of Bank v. Martin. In the ease of Lewiston Nat. Bank v. Martin, 2 Idaho, 734, 23 Pac. 920, the stock of drugs was mortgaged in substantially the same manner as in the case at bar, and goods were sold in ordinary course of trade, and money used to purchase new goods, and this was permitted by the provisions of the mortgage, under the provision that the goods should remain in the possession of the mortgagor; and gave him the free and full use and enjoyment of the same. Before any attempt was made to foreclose the above mortgage, by affidavit and notice, or otherwise, Porter & Co. obtained judgment against the mortgagor, levied execution on said goods, and sold them on August 20, 1888. Thereafter, on the eleventh day of September, the bank obtained judgment against the mortgagor, and an order of sale of the mortgaged property under the supposed lien. Execution was issued, and the sheriff refused to levy upon and sell said goods under the latter execution, because of prior levy and sale. The bank sued the sheriff for value of goods, and in'this suit the court held the mortgage void, on authority of Robinson v. Elliott, 22 Wall. 524. The facts in McConnell v. Langdon, 3 Idaho, 157, 28 Pac. 403, were the same. The attachment was levied before foreclosure proceedings were commenced and in each case the goods were levied upon, and in the first case sold, before foreclosure proceedings were commenced. The respondent claims that the mortgage in the case at bar is almost a copy of the mortgage mentioned in Bank v. Martin, supra. Without in any manner intimating what the opinion of this court may be when such mortgage is fulJy presented for consideration, we answer: Yes; so it seems to this court; and if, as in that case, the respondent had levied his attachment upon these goods before any proceedings had been instituted for the foreclosure of the mortgage, then the cases would seem to be almost precisely alike, and the validity of the mortgage would then have been before the court. And the same is true of the case of McConnell v. Langdon, supra; and, if presented under the same state of facts, the decision of this court in this case might have been the same as in those cases.

We must not lose sight of the fact that process fair upon its face must be executed by the sheriff, upon its being placed in his hands. We hold the affidavit and notice to be process. No objection is made by the respondent to the form of the process. Therefore the sheriff must execute it. The sheriff cannot be called upon, when he receives an execution, to sit in judgment upon the validity of the judgment. Neither can he, in this ease, be called upon to sit in judgment on the validity of the mortgage. This is for the court, and not for the sheriff.

But the attaching creditor is not without abundant and easy remedy. Section 3396 is: “The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the district court by any person interested in so doing, for which purpose an injunction may issue if necessary.” What, if any, remedy, the respondent now has it would, of course, be improper for this court to indicate. This disposes of the questions raised by the attorneys for the respondent.

The case of Jewett v. Sundback, 5 S. Dak. 111, 58 N. W. 20, is cited as an authority sustaining the respondent’s contention. That case is similar in many respects to the case at bar, and, if the same questions had been raised before that court as are raised here, it would have been an authority in point. In that case the sheriff had the goods in his possession under foreclosure proceedings when the execution was delivered to him for service, and he was directed to levy on the goods, as in this case, and he refused. The plaintiff in execution sued the sheriff. The sheriff, or his defense, introduced the mortgage, and the plaintiff, without 'objection from the defense, proceeded to show that the mortgage was void: and proof was taken, and the case decided upon that proof. The sheriff did not seek to rest his defense upon the ground that he was proceeding under a writ of foreclosure which was process fair upon its face, and which he must execute, unless commanded to desist by the court, by in junction or otherwise. Therefore the question before this court was not before that court, and was neither considered nor decided therein. We have not the statute of South Dakota, and therefore cannot tell what effect the statute may have had in the decision of that case. The decision of the court below is reversed, and the judgment set aside.

(February 1, 1896.) Sullivan and Huston, JJ., concur.