Cross References.

Arrest of debtor in supplementary proceedings,§ 11-502.

Arrest of witnesses,§ 9-709.

Discharge of persons imprisoned on civil process,§ 8-201 et seq.

Incarceration of sheriff on arrest by coroner or elisor,§ 31-2220.

Witnesses privileged from arrest,§ 9-1303.

Compiler’s Notes.

The reference to “this Code” in this section is to the Code of Civil Procedure, a division of the Idaho Code, consisting of titles 1 through 13.

Am. Jur. 2d.

C.J.S.

ALR.

Modern status of rules as to right to forcefully resist illegal arrest. 44 A.L.R.3d 1078.

Right to resist excessive force used in accomplishing lawful arrest. 77 A.L.R.3d 281.

Cross References.

Attachments and garnishments,§ 8-501 et seq.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Am. Jur. 2d.

C.J.S.

Cross References.

Common form of undertaking,§ 12-613.

Justification of sureties,§ 12-614; Idaho Civil Procedure Rule 66(a).

State, county or city need not give bond,§ 12-615.

C.J.S.

§ 8-106. Time of making and contents of order.

The order may be made at the time of the issuing of the summons, or at any time afterward before judgment. It must require the sheriff of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum and to return the order at a time therein mentioned to the clerk of the court in which the action is pending.

History.

C.C.P. 1881, § 275; R.S., R.C., & C.L., § 4245; C.S., § 6734; I.C.A.,§ 6-106.

Authority of Sheriff.

County commissioners’ supervisory authority to control other constitutional officers did not extend to the sheriff’s bail procedures. The commissioners’ statutory duties under§§ 20-622 and 31-1503 do not encompass control of bail, which is a matter within the sheriff’s authority under this section and§§ 19-817 and 31-2202(6). Allied Bail Bonds, Inc. v. County of Kootenai, 151 Idaho 405, 258 P.3d 340 (2011).

Am. Jur. 2d.

C.J.S.

Cross References.

Officer must exhibit process on demand,§ 31-2214.

Service of process by elisor,§§ 31-2218 to 31-2221.

Sheriff must indorse time of reception on process,§ 31-2202.

Sheriff’s fee for executing order of arrest,§ 31-3203.

Am. Jur. 2d.

C.J.S.

Cross References.

Arrest and custody of sheriff,§ 31-2220.

Board money to be advanced in case of commitment on execution,§ 8-212.

Sheriff is justified by, and must execute, process regular on its face, notwithstanding defects in the proceedings,§ 31-2213.

Am. Jur. 2d.

C.J.S.

ALR.

Funds deposited in court in lieu of bail as subject of garnishment. 1 A.L.R.3d 936.

Validity, construction, and application of statutes regulating bail bond business. 13 A.L.R.3d 618.

Cross References.

Surety company bonds authorized,§ 41-2607.

Cross References.

Penalty for failure to return,§ 31-2205.

Return of process after expiration of term of office,§ 31-2225.

Return of process is prima facie evidence of facts,§ 31-2204.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 6 of S.L. 1969, ch. 125 provided that the act be effective on January 11, 1971.

Cross References.

Sufficiency of justification of sureties,§ 12-614, Idaho R. Civ. P. 6(b).

Cross References.

Suits on official bonds by persons injured,§ 59-815.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 293; R.S., R.C., & C.L., § 4263; C.S., § 6752; I.C.A.,§ 6-124, was repealed by S.L. 2004, ch. 114, § 1.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 294; R.S., R.C., & C.L., § 4264; C.S., § 6753; I.C.A.,§ 6-125, was repealed by S.L. 2004, ch. 114, § 1.

C.J.S.

§ 8-127. Vacation of order of arrest — Reduction of bail.

If, upon application, it appears that there was not sufficient cause for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced.

History.

C.C.P. 1881, § 296; R.S., R.C., & C.L., § 4266; C.S., § 6755; I.C.A.,§ 6-127.

C.J.S.

Cross References.

Arrest in civil actions,§ 8-101 et seq.

Applicability.

This chapter is applicable to an application for discharge by one confined in jail on contempt proceedings for noncompliance with an order for the payment of alimony. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

Mandamus.

Writ of mandamus may issue in proper case to compel hearing on such cases, but petitioner must have clear legal right to compel action. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

Allegation as to condition of petitioner’s health held not material on petition for writ of mandate. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

C.J.S.

§ 8-202. Notice of application.

Such person must cause a notice in writing to be given to the plaintiff, his agent or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person may be confined, or, in case of his absence or inability to act, to a magistrate of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment.

History.

C.C.P. 1881, § 784; R.S., R.C., & C.L., § 5076; C.S., § 7309; I.C.A.,§ 6-602; am. 1969, ch. 125, § 3, p. 386.

Effective Dates.

Section 6 of S.L. 1969, ch. 125 provided that the act be effective on January 11, 1971.

Time for Application.

It appearing from§ 8-208 that party, to make second application for discharge, must wait thirty (30) days, then, by inference, he must wait that length of time to make first application. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

C.J.S.

§ 8-203. Service of notice.

Such notice must be served upon the plaintiff, his agent or attorney, one (1) day at least before the hearing of the application.

History.

C.C.P. 1881, § 785; R.S., R.C., & C.L., § 5077; C.S., § 7310; I.C.A.,§ 6-203.

Requirements of Application.

Application for discharge must allege giving of proper notice of time and place of hearing to parties entitled thereto. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

C.J.S.

§ 8-204. Examination of debtor.

At the time and place specified in the notice, such person must be taken before such judge, who must examine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed, or any part thereof, and such judge may also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.

History.

C.C.P. 1881, § 786; R.S., R.C., & C.L., § 5078; C.S., § 7311; I.C.A.,§ 6-204.

C.J.S.

§ 8-205. Interrogatories may be propounded.

The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, if required by him, be proposed and answered in writing, and the answer must be signed and sworn to by the prisoner.

History.

C.C.P. 1881, § 787; R.S., R.C., & C.L., § 5079; C.S., § 7312; I.C.A.,§ 6-205.

C.J.S.

§ 8-206. Oath prior to discharge.

If, upon the examination, the judge is satisfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to wit: “I, ...., do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars ($50.00), except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to hinder, delay or defraud my creditors, so help me God.”

History.

C.C.P. 1881, § 788; R.S., R.C., & C.L., § 5080; C.S., § 7313; I.C.A.,§ 6-206.

C.J.S.

§ 8-207. Order of discharge.

After administering the oath the judge must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause.

History.

C.C.P. 1881, § 789; R.S., R.C., & C.L., § 5081; C.S., § 7314; I.C.A.,§ 6-207.

C.J.S.

ALR.

ALR. — Posttraumatic Stress Disorder (PTSD) as Defense to Murder, Assault, or other Violent Crime. 4 A.L.R.7th 5.

C.J.S.

CASE NOTES

Time for Application.

It appearing from this section that party, to make second application for discharge, must wait thirty (30) days, then, by inference, he must wait that length of time to make first application. Brooks v. Edgington, 40 Idaho 432, 233 P. 514 (1925).

C.J.S.

§ 8-210. Judgment remains in force.

The judgment against any prisoner who is discharged remains in full force against any estate which may then, or at any time afterward during the life of the judgment, belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed.

History.

C.C.P. 1881, § 792; R.S., R.C., & C.L., § 5084; C.S., § 7317; I.C.A.,§ 6-210.

Cross References.

Costs, Idaho R. Civ. P. 54(d)(1) to Rule (d)(7).

Judgment, Idaho R. Civ. P. 58(a).

Prior Laws.

Former§§ 8-301 to 8-312, which comprised C.C.P. 1881, §§ 297 — 308; R.S., R.C., & C.L., §§ 4271 — 4282; C.S., §§ 6756 — 6767; I.C.A.,§§ 6-301 — 6-312; am. 1969, ch. 125, § 4, p. 386, was repealed by S.L. 1973, ch. 118, § 1, p. 219.

Attorney Fees.

Plaintiff’s action by claim and delivery under this chapter for merchandise taken without paying by the defendant was an action grounded in contract; thus, plaintiff could petition for, and receive, costs and attorneys’ fees under§ 12-120. Building Concepts, Ltd. v. Pickering, 114 Idaho 640, 759 P.2d 931 (Ct. App. 1988).

Constitutionality.

Since the new claim and delivery statute (this chapter) provides the debtor with a pre-seizure notice and hearing, it does not suffer from the constitutional defect of the former statute (former chapter 3 of title 8) which denied procedural due process. Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980).

Decisions Under Prior Law

Alternative Relief.

Defendants were not in a position to assert that the court should have submitted alternative forms of verdict as regards which party was entitled to possession of tractor and its value, such being true because defendants were in possession of tractor at all times covered by supplemental complaint including the time of trial and plaintiff being satisfied with the alternative relief prayed for, that of judgment for balance due under contract of sale of the tractor, plaintiff not complaining as evidenced by their failure to appeal or cross-appeal. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Attorney’s Fees.

Attorney fees are not a proper element of damages in a replevin action and are not recoverable in the statutory claim and delivery action. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Counterclaim.

Trial court erred in taking from the jury the issues of plaintiff’s alleged conversion of the tractor and defendants’ alleged damages attributable thereto, as defendants after conditional sales were entitled to have jury determine whether plaintiff suing in claim and delivery had wrongfully retaken the tractor before repurchasing the sales contract. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Damages for Detention.

In action by purchaser to recover possession of tractor taken by seller where purchaser did not file undertaking for delivery but only an undertaking for costs and defendant filed undertaking for redelivery but left tractor in possession of sheriff, the defendant who obtained judgment for possession was not entitled to any damages for detention. Michael v. Zehm, 74 Idaho 442, 263 P.2d 990 (1953).

Demand for Immediate Possession Optional.

It is left optional with the plaintiff whether he demand immediate possession of the personal property or not. Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561 (1912).

Insufficiency of Evidence.

Presumptions from Possession.

Evidence held insufficient to authorize the maintenance of an action of claim and delivery, since the notes in question were never delivered to the plaintiff county, nor to its treasurer, nor to any one else in behalf of the said county, nor any of its officers in trust or otherwise. Lewis County v. State Bank, 31 Idaho 244, 170 P. 98 (1918). Presumptions from Possession.

Possession of personal property is indicia of ownership, and one in custody of personal property is presumed to be rightfully in possession thereof until the contrary appears. American Fruit Growers, Inc. v. Walmstad, 44 Idaho 786, 260 P. 168 (1927).

Property Subject to Action.

To support an action of claim and delivery, the property must be a personal chattel at the time of the taking and not something which has been turned into a chattel by reason of having been separated from the freehold by the defendant. Hull v. Hull, 1 Idaho 361 (1871).

An action of claim and delivery will not lie to recover gambling devices incapable of use for any purpose except in violation of the antigambling law. Mullen v. Moseley, 13 Idaho 457, 90 P. 986 (1907).

An action for recovery of mortgage bonds is an action for the recovery of possession of personal property. Bates v. Capital State Bank, 18 Idaho 429, 110 P. 277 (1910).

Replevin Abolished.

The common-law action of replevin is not in force in this state, and the provisions of law regarding claim and delivery take its place. Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561 (1912).

The claim and delivery statutes of this state have replaced the common law action of replevin. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Right of Action.

In an action of claim and delivery, the right to immediate and exclusive possession of the property must exist at time the action is commenced. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Right to Possession Is Issue.

In an action of claim and delivery, the right to the possession of the property, and not the ownership thereof, is the main issue. Cunningham v. Stoner, 10 Idaho 549, 79 P. 228 (1904); American Fruit Growers, Inc. v. Walmstad, 44 Idaho 786, 260 P. 168 (1927).

Only question involved in action in claim and delivery is right to possession of article in controversy. Commercial Credit Co. v. Mizer, 50 Idaho 388, 296 P. 580 (1931).

Who May Be Sued.

Where the vendee of property under conditional sale is vested with the power to sell and deliver the proceeds to the vendor and sells, but fails to so deliver the proceeds, claim and delivery will not lie against the purchaser by the original vendor. Peasley v. Noble, 17 Idaho 686, 107 P. 402 (1910).

Under the provisions of the former “claim and delivery” statutes of this state, an action could be maintained against a person to recover the possession of personal property, although he did not have the possession of it at the time of the commencement of the action. Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561 (1912).

Who May Maintain Action.

Where a chattel mortgage contains a stipulation providing that upon the happening of certain contingencies therein named, the mortgagee may take possession of said property and sell and dispose of it for the best price obtainable by due process of law, upon the happening of such contingency the mortgagee may maintain an action of claim and delivery to recover possession of the mortgaged property from an officer claiming to hold the same under an execution, who refuses to deliver up the property upon demand of the mortgagee or to pay the mortgage debt. Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079 (1924); Schleiff v. McDonald, 41 Idaho 50, 237 P. 1108 (1925).

An action of claim and delivery may be maintained by one having a qualified property in goods coupled with the right of possession. Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079 (1924); Smith v. Washburn-Wilson Seed Co., 40 Idaho 191, 232 P. 574 (1925); Schleiff v. McDonald, 41 Idaho 50, 237 P. 1108 (1925).

The action of claim and delivery is essentially a possessory one and it should be brought in the name of the plaintiff, who is entitled to the possession, whether he is the holder of legal title or not; where the right of possession is separated from the legal title then the action must be maintained by the one lawfully entitled to the possession thereof. Smith v. Washburn-Wilson Seed Co., 40 Idaho 191, 232 P. 574 (1925).

A husband or wife could maintain an action against the other for separate property if they are justified in living apart, or it would seem that the husband can maintain an action against the wife for community property where his right to the possession thereof during the pendency of the divorce action had not been determined. Benson v. District Court, 57 Idaho 85, 62 P.2d 108 (1936).

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 8-302 was repealed. See Prior Laws,§ 8-301.

Constitutionality.

Since the new claim and delivery statute (this chapter) provides the debtor with a pre-seizure notice and hearing, it does not suffer from the constitutional defect of the former statute (former chapter 3 of title 8) which denied procedural due process. Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980).

Decisions Under Prior Law

Allegation of Ownership.

In an action in replevin an averment “that on the sixth of May, 1896 (more than two years before the commencement of the suit) plaintiff was the owner of said property” is not sufficient averment that plaintiff, at the time of commencing his action, was the owner or in possession or entitled to possession of the property in question. Bingham County Agrl. Ass’n v. Rogers, 7 Idaho 63, 59 P. 931 (1900).

Title alone may or may not give rise to the right of immediate possession. Morrison v. Quality Produce, Inc., 92 Idaho 448, 444 P.2d 409 (1968). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 8-303. Plaintiff’s undertaking.

A writ of possession shall not issue until plaintiff has filed with the court a written undertaking executed by two (2) or more sufficient sureties, to the effect that they are bound to the defendant in double the value of the property, as determined by the court, for the return of the property to the defendant, if return thereof be ordered, and for the payment to him of any sum as may from any cause be recovered against the plaintiff.

History.

I.C.,§ 8-303, as added by 1973, ch. 118, § 2, p. 219.

Cross References.

General form of undertaking,§ 12-613.

Justification of sureties,§ 12-614, Idaho R. Civ. P. 66(a).

Sheriff’s fee for executing order for delivery of personal property,§ 31-3203.

State, county or city need not give bond,§ 12-615.

Statutory form of undertaking,§ 12-613.

Prior Laws.

Former§ 8-303 was repealed. See Prior Laws,§ 8-301.

Decisions Under Prior Law

Breach of Conditions.

Condition Precedent to Action.

Condition in bond that plaintiff shall duly prosecute action is broken by dismissal of action without return of property. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924), following Keenan v. Washington Liquor Co., 8 Idaho 383, 69 P. 112 (1902). Condition Precedent to Action.

Defendant in claim and delivery must first recover judgment against plaintiff before the defendant can proceed against the sureties on plaintiff’s bond. Oakes v. American Sur. Co., 58 Idaho 482, 76 P.2d 932 (1938).

Expense of Bond.

Where defendants did not adduce any evidence as regards their alleged expense in obtaining the replevin bond necessary in their being repossessed of tractor allegedly wrongfully taken from them by sheriff, the trial court did not err in removing such issue from the jury, such recovery being precluded by their action. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

In an action for replevin or claim and delivery, the expense of a bond, in the amount required to effect redelivery of property to the person found to be wrongfully dispossessed thereof, is recoverable by such person. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Material Conditions.

Condition that plaintiff will prosecute his suit with effect and without delay is substantive and independent condition and as material as any other substantive condition. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924).

Pleading in Action.

In action on claim and delivery bond given by surety company, it is not necessary to allege corporate existence of such company. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924).

Purpose of Undertaking.

Undertaking is for the doing of three acts: (1) For prosecution of action. (2) For return of property if so adjudged. (3) For payment to defendant of such sums as may from any cause be recovered against plaintiff. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924).

Signature Not Necessary.

Principal who gives undertaking is liable thereon for any breach of its conditions, although he has not signed it. Hoebel v. Utah-Idaho Livestock Loan Co., 39 Idaho 294, 227 P. 1048 (1924).

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 8-304 was repealed. See Prior Laws,§ 8-301.

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 8-305 was repealed. See Prior Laws,§ 8-301.

Breach of Peace.

Sheriff’s cutting of farmer’s chain or padlock in order to repossess combine would not amount to misconduct or a breach of the peace warranting the award of punitive damages and could not be termed malicious, wanton, or an extreme deviation from reasonable conduct. Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980).

Constitutionality.

Since the new claim and delivery statute (this chapter) provides the debtor with a pre-seizure notice and hearing, it does not suffer from the constitutional defect of the former statute (former chapter 3 of title 8) which denied procedural due process. Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980).

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 8-306 was repealed. See Prior Laws,§ 8-301.

Decisions Under Prior Law

Damages for Detention.

When Remedy Inadequate.

In action by purchaser to recover possession of tractor taken by seller where purchaser did not file undertaking for delivery but only an undertaking for costs and defendant filed undertaking for redelivery but left tractor in possession of sheriff, the defendant who obtained judgment for possession was not entitled to any damages for detention. Michael v. Zehm, 74 Idaho 442, 263 P.2d 990 (1953). When Remedy Inadequate.

A writ of mandate, rather than claim and delivery, was the proper remedy to require defendants to return books and records to plaintiff corporations, since under this section defendant could have posted a redelivery bond and retained possession of the books and records, perhaps defeating furtherance of business of plaintiff corporations; additionally, where a writ of mandamus directs the restitution of property by corporate officer as performance of his duty, it is not necessary to describe such property with the particularity required in a replevin proceeding. Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 464 P.2d 926 (1970).

Since under this section the defendants would have been entitled to post a redelivery bond and retain possession of the corporate records even though the plaintiff had initiated a claim and delivery action, an action in mandamus, rather than an action in replevin, was proper. Nancy Lee Mines, Inc. v. Harrison, 93 Idaho 652, 471 P.2d 39 (1970).

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 8-307 was repealed. See Prior Laws,§ 8-301.

Compiler’s Notes.

The reference to “this code” in this section is to the Code of Civil Procedure, a division of the Idaho Code, consisting of titles 1 through 13.

Decisions Under Prior Law

Expense of Bond.

In an action for replevin or claim and delivery, the expense of a bond in the amount required to effect redelivery of property to the person found to be wrongfully dispossessed thereof, is recoverable by such person. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963). Where defendants did not adduce any evidence as regards their alleged expense in obtaining the replevin bond necessary in their being repossessed of tractor allegedly wrongfully taken from them by sheriff, the trial court did not err in removing such issue from the jury, such recovery being precluded by their action. National Motor Serv. Co. v. Walters, 85 Idaho 349, 379 P.2d 643 (1963).

Right to Possession.

Primary issue in action on claim and delivery of personal property is the right to possession of the property. Smith v. Cooper, 73 Idaho 99, 245 P.2d 816 (1952).

Title.

Plaintiff was not entitled to recover in action on claim and delivery of property where evidence showed that title was placed in name of plaintiff in order to secure him for advances made on logging operation, which advance had been paid by delivery of logs to plaintiff by defendant. Smith v. Cooper, 73 Idaho 99, 245 P.2d 816 (1952).

Prior Laws.

Former§ 8-308 was repealed. See Prior Laws,§ 8-301.

Prior Laws.

Former§ 8-309 was repealed. See Prior Laws,§ 8-301.

C.J.S.

§ 8-310. Return of writ.

The sheriff shall return the writ of possession, with his proceedings thereon, to the court in which the action is pending, within twenty (20) days after taking the property mentioned therein.

History.

I.C.,§ 8-310, as added by 1973, ch. 118, § 2, p. 219.

Cross References.

Penalty for failure to return,§ 31-2205.

Return of process after expiration of term of office,§ 31-2225.

Return of process, prima facie evidence of facts,§ 31-2204.

Prior Laws.

Former§ 8-310 was repealed. See Prior Laws,§ 8-301.

C.J.S.

§ 8-311. Orders to protect possession.

After the property has been delivered to a party or the value thereof secured by an undertaking as provided in this chapter, the court shall, by appropriate order, protect that party in the possession of such property until the final determination of the action.

History.

I.C.,§ 8-311, as added by 1973, ch. 118, § 2, p. 219.

Prior Laws.

Former§ 8-311 was repealed. See Prior Laws,§ 8-301.

Prior Laws.

Former§ 8-312 was repealed. See Prior Laws,§ 8-301.

Effective Dates.

Section 3 of S.L. 1973, ch. 118 declared an emergency. Approved March 14, 1973.

Non-exclusive claim.

Both the unlawful detainer process and the claim and delivery process are statutorily controlled. The claim and delivery statute provides that while such actions generally may be given precedence over other pending civil actions insofar as setting the same for hearing or trial, the statutes relating to claim and delivery process do not require, as does the unlawful detainer action (§ 6-310), that the action for recovery of personal property be an “exclusive” claim. Powder Basin Psychiatric Assocs. v. Ullrich, 129 Idaho 658, 931 P.2d 652 (Ct. App. 1996).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 309-317; R.S., R.C., & C.L.,§§ 4287-4297; C.S.,§§ 6768-6778; I.C.A.,§§ 6-401 — 6-411, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 65(a) et seq.

Cross References.

Civil arrest in action to recover concealed or removed property,§ 8-102.

Debts owing by state of Idaho subject to execution or garnishment after judgment,§ 11-202.

Discharge of persons imprisoned on civil arrest,§ 8-201 et seq.

Driving livestock from range by person other than owner, attachment of livestock of defendant,§ 25-1302.

Fraternal benefit societies, benefits not attachable,§ 41-3218.

Fraternal benefit societies, benefits not liable to garnishment,§ 41-3218.

Liens barring attachments,§ 8-502.

Proceedings against debtor of defendant’s debtor, stay of transfer of property,§ 11-507.

Property not capable of manual delivery subject to attachment,§ 11-201.

Sheep disease control, attachment of property under act governing,§ 25-139.

State, county or city not required to give bond,§ 12-615.

Vendor lien statutes,§§ 45-801 to 45-803.

Action on Covenant of Warranty.

Where claim, as set out in complaint, was one based on the covenant contained in the warranty deed delivered by former owner and is an action upon “contract express or implied,” this claim is within the contemplation of this section requiring that the action be “for the direct payment of money.” Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963).

Actions Wherein Attachment Issues.

The contract of an indorser of a promissory note or guarantor of a bill of exchange is a contract “for the direct payment of money,” and an attachment may issue against property of such indorser or guarantor when action is brought to enforce payment of debt, the same as against acceptor or maker. Armstrong v. Slick, 14 Idaho 208, 93 P. 775 (1908).

The statute provides in what actions an attachment may issue. If and if complaint discloses that action is not such, and attachment is issued, then it was improperly issued, and upon proper motion it will be dissolved. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821 (1908).

In action upon express contract for payment of money, plaintiff is entitled to have property attached and cannot be held in damages unless same was wrongful within meaning of statute. Taylor v. Fluharty, 35 Idaho 705, 208 P. 866 (1922).

In absence of express statutory provision, attachment will not lie on demands existing ex delicto; it is immaterial that same measure of damages might be applied as would govern in case of breach of contract. Sunderlin v. Warner, 42 Idaho 479, 246 P. 1 (1926).

A negotiable promissory note is a contract for direct payment of money and this characteristic is not destroyed by provision for reasonable attorney’s fee in case of suit or action. It still remains an unconditional promise for the direct payment of money. Twin Falls Nat’l Bank v. Reed, 44 Idaho 573, 258 P. 526 (1927).

Where the circuit court of appeals had granted a decree enforcing back pay against an employer, on petition of the national labor relations board, it would restrain estranged wives and creditors of the employees entitled to the back pay from maintaining actions in the state court for the purpose of carrying into effect attachment writs and injunctive orders against the employer for the purpose of reaching the back pay, since the power to punish for contempt was not an adequate safeguard. NLRB v. Sunshine Mining Co., 125 F.2d 757 (9th Cir. 1942).

Where money is advanced on the purchase price of goods, and the seller fails or refuses to deliver, a suit to recover the money advanced is an implied contract for the direct payment of money permitting the issuance of an attachment. B. J. Carney & Co. v. Murphy, 68 Idaho 376, 195 P.2d 339 (1948). An action for a balance due on an open, mutual and current account permits an attachment, there being an implied contract to pay the indebtedness. B. J. Carney & Co. v. Murphy, 68 Idaho 376, 195 P.2d 339 (1948).

If the complaint, by any reasonable intendment, discloses an action upon contract, express or implied, for the direct payment of money, the writ of attachment was properly issued. B. J. Carney & Co. v. Murphy, 68 Idaho 376, 195 P.2d 339 (1948).

Where complaint by affiant sought to recover amount paid non-resident in drilling of well on the ground of fraudulent representations by non-resident, attachment would lie since action was based on implied promise to repay expense as result of fraud, hence action was ex contractu. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953).

Appeals.

Where plaintiff waived tort of defendant in order to bring action of attachment, and defendant moved to dissolve attachment, which court overruled, but defendant did not appeal from order overruling motion, the court on appeal will not consider question as to whether complaint for attachment was validly brought. Addy v. Stewart, 69 Idaho 357, 207 P.2d 498 (1949).

Attachment Against Nonresidents.

In attachment against property of defendant not residing in this state, it is not necessary to show by the affidavit for attachment that plaintiff has no security for debt. Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038 (1910).

A corporation organized under the laws of a foreign jurisdiction, although engaged in business in this state and having complied with the constitution and all laws of this state affecting foreign corporations, is a nonresident and subject to attachment as such. Jennings v. Idaho Ry. Light & Power Co., 26 Idaho 703, 146 P. 101 (1915).

This section,§§ 8-502 and 5-508 clearly authorized an action against a nonresident, and attachment of his property within the state, for the satisfaction of a debt owing to the plaintiff, and a judgment in favor of the plaintiff in such an action based upon substituted service is valid and enforceable to extent of the value of the properties seized. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Construction with Section 6-101.

Section 6-101 providing there can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property is inapplicable to a debt that is secured as therein provided, but which security has become valueless; in such case the mortgagee has a complete and independent action on the note secured by the mortgage and may enforce the same therein. Edminster v. Van Eaton, 57 Idaho 115, 63 P.2d 154 (1936).

Damages for Wrongful Attachment.

Damages sustained by reason of the wrongful issuance of an attachment are proper matter for a cross-complaint in the attachment suit. Willman v. Friedman, 4 Idaho 209, 38 P. 937 (1894).

Liens Barring Attachments.

Where a promissory note maker’s claim of wrongful attachment was based upon the theory that the suit itself was maliciously brought on an invalid note, but where the jury found the note valid and that theory of liability dissipated, the trial court committed no error in not allowing the jury to pass upon the issue sought to be raised by the maker’s counterclaim. First Realty & Inv. Co. v. Rubert, 100 Idaho 493, 600 P.2d 1149 (1979). Liens Barring Attachments.

An order drawn by defendant on his debtor, accepted by latter and placed in the hands of the creditor to secure the debt is such pledge of personal property as to preclude an attachment. Murphy v. Montandon, 3 Idaho 325, 29 P. 851 (1892).

Where W sold to F certain real estate upon executory contract, F going into possession, but title remaining in W until purchase-price is paid, W has such a lien as bars him from resorting to attachment for the recovery of the unpaid portion of the purchase-price. Willman v. Friedman, 3 Idaho 734, 35 P. 37 (1893).

A reservation of title in vendor in a conditional sale contract until payment of the purchase price constitutes such a lien as precludes vendor from obtaining an attachment in an action to recover the unpaid portion of the purchase price. Willman v. Friedman, 3 Idaho 734, 35 P. 37 (1893); Mark Means Transf. Co. v. Mackinzie, 9 Idaho 165, 73 P. 135 (1903); Barton v. Groseclose, 11 Idaho 227, 81 P. 623 (1905).

Where an account is assigned as security and accepted on condition that a note by debtor in the account shall be substituted therefor, and the account is afterward liquidated by a note which is not executed in the form required by the agreement between assignor and assignee, and assignee refuses to accept same for that reason, there is no such security as to preclude the attachment. Simmons Hdwe. Co. v. Alturas Com. Co., 4 Idaho 334, 39 P. 550 (1895).

Claim must be founded upon contract for payment of money, payment of which has not been secured by any of means specified in statute. If it has been secured, however inadequately, attachment cannot issue unless such security, without any act of plaintiff or person to whom security was given, has become valueless. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

In action on note, the fact that security held by plaintiffs was situated in another state does not entitle them to resort to attachment. Mason v. Jansen, 45 Idaho 354, 263 P. 484 (1927).

Conclusion of court was that the contract to sell real and personal property of a ranch and the farming machinery and equipment was an executory contract of sale under the terms of which appellants retained title as security for the payment of the purchase price and, this being so, the contract was one expressly providing for security within the meaning of this section and§ 8-502, and the attachment was properly discharged. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964).

The claim must be one founded upon a contract for the direct payment of money, the payment of which has not been secured in any degree by any of the means specified in the statute; if it has been secured, however inadequately, attachment cannot issue unless such security has without any act of the plaintiff or the person to whom the security was issued, become valueless. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964).

Nature of Remedy.

Attachment is such a provisional remedy as reaches out and lays hold upon property by proceeding in rem and subjects it to payment of the debt for recovery of which action was instituted. Potlatch Lumber Co. v. Runkel, 16 Idaho 192, 101 P. 396 (1909). The remedy by attachment is purely statutory and summary and a party must, in order to have the benefit of this statutory process, do everything required by the authorizing statutes. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964).

Nature of Writ.

Attachment is a creature of statute; it did not exist as such at common law. If and when it accomplishes the purpose of inducing a personal appearance of the alleged debtor, the case then proceeds in personam, and the attachment is collateral only. Sherwood v. Porter, 58 Idaho 523, 76 P.2d 928 (1938).

Attachment proceedings are entirely statutory, and it is within the province of the legislature to place any limitations upon or extend the right of an attaching creditor, which the legislature deems advisable. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919).

Obligation Not Due.

The statute does not require either by express terms or by implication that the affidavit contain an allegation that the debt is due. Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963).

Priority of Liens.

Where the plaintiff attached defendant’s bank account and obtained judgment prior to the filing of a federal tax lien, but had execution levied on the bank account after such filing, the judgment plaintiff’s attachment and judgment lien had priority over the federal tax lien. United States v. Brame, 243 F. Supp. 29 (D. Idaho 1965).

Subsequent or Alias Writs.

Since there is nothing in the statute prohibiting the issuance of subsequent or alias writs of attachment, there was no merit in respondent’s contention that the writ of attachment of 1959 could not issue while the previous writ was still outstanding. Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963).

Time of Issuance.

A writ of attachment issued prior to the issuance of any summons or to the appearance of defendant in case would be subject to discharge on motion on the ground that same was improperly issued. Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827 (1908).

The legislature did not intend to allow plaintiff to commence action and let his complaint lie in the files of the court for one year, and at same time have defendant’s property attached and held under process for payment of debt that he has taken no steps to reduce to a final judgment. Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827 (1908).

Unliquidated Claim.

It is not essential the amount of the claim on the contract, express or implied, on which the attachment is based, be certain or liquidated, if it be of such nature that the damages are easily ascertainable according to fixed standards supplied by the contract or the law acting upon it. Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963).

Cited

That the amount of recovery is uncertain and has to be proved does not defeat attachment. Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963). Cited Vollmer v. Spencer, 5 Idaho 557, 51 P. 609 (1897); Newman v. Cheesman Auto. Co., 33 Idaho 685, 197 P. 826 (1921); Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975); Slayton v. Zapp, 108 Idaho 244, 697 P.2d 1258 (Ct. App. 1985); Sinclair & Co. v. Gurule, 114 Idaho 362, 757 P.2d 225 (Ct. App. 1988).

Am. Jur. 2d.

C.J.S.

ALR.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors. 11 A.L.R.3d 1465.

Attachment and garnishment of funds in branch bank or main office of bank having branches. 12 A.L.R.3d 1088.

Family allowance from descendant’s estate as exempt from attachment, garnishment, execution, and foreclosure. 27 A.L.R.3d 863.

Potential liability of insurer under liability policy as subject of attachment. 33 A.L.R.3d 992.

Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor. 35 A.L.R.3d 1094.

Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.

Excessiveness or inadequacy of attorneys’ fees in matters involving commercial and general business activities. 23 A.L.R.5th 241.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment. 61 A.L.R.3d 984.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Uniform Consumer Credit Code, construction and effect of. 86 A.L.R.3d 317.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor. 86 A.L.R.5th 527.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Brackets were placed around the comma in the second sentence in subsection (e) by the compiler, as that comma improperly appears in the 1974 session laws.

Absence of Signature.

Absence of affiant’s signature from affidavit does not vitiate it where same is duly verified. Simmons Hdwe. Co. v. Alturas Com. Co., 4 Idaho 334, 39 P. 550 (1895).

Affidavit in Attachment Against Nonresidents.

Under each subdivision, 1 and 2, the affidavit for an attachment must state amount of the indebtedness sought to be recovered, over and above all legal setoffs and counterclaims. Kerns v. McAulay, 8 Idaho 558, 69 P. 539 (1902).

Affidavit need not allege that defendant has property in the state. Kerns v. McAulay, 8 Idaho 558, 69 P. 539 (1902).

Defects in an affidavit for attachment against a nonresident who is not personally served with process go to the jurisdiction of the court and preclude entry of a valid judgment in the action. Kerns v. McAulay, 8 Idaho 558, 69 P. 539 (1902).

The nonresidence of the defendant must be stated positively, and a writ of attachment based on an affidavit which does not so state it is improperly and irregularly issued. Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510 (1919).

Amendment of Affidavit.

Under statutes providing for amendment (§ 8-536), defective statement of ground for attachment is generally held amendable. Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090 (1929).

Where an amended affidavit for attachment showed that the original affidavit on which the attachment was issued was false in representing that the payment of the debt sued on had not been secured by a mortgage, in absence of a showing that the false statement in the original affidavit was made innocently, the trial judge was not bound to accept as true the amended affidavit stating that the security which had been given had become valueless. Casebeer v. Todd, 62 Idaho 702, 115 P.2d 746 (1941).

Averment as to Security.

Trial court correctly denied appellants’ motion to strike respondent’s amended affidavit for attachment, made by its treasurer on its behalf and in affirmative terms, not upon information and belief; no hearing having been held on appellants’ amended motion to dissolve attachment when the amended affidavit was filed, it was sufficient and timely. Salt Lake Hdwe. Co. v. Steffler, 87 Idaho 383, 393 P.2d 607 (1964). Averment as to Security.

Failure of an affidavit for attachment to state that debt sued upon is not secured by “any pledge of personal property” does not render attachment ineffective or void when it does allege that same has not been secured by any mortgage or lien on real or personal property; lien includes “pledge.” Glidden v. Whittier, 46 F. 437 (C.C.D. Idaho 1891).

A party who holds a secured claim against another cannot secure the benefit of the attachment law therefor by procuring an assignment of small unsecured claims and writing such claims in same complaint with secured claims. Willman v. Friedman, 3 Idaho 734, 35 P. 37 (1893).

When debt is secured by mortgage, attachment affidavit in a suit to recover debt must allege that the mortgage was given and that same has become valueless without any act of plaintiff; if it falsely states that debt is unsecured, the attachment should be dissolved on motion, although it is shown that security has become valueless. Vollmer v. Spencer, 5 Idaho 557, 51 P. 609 (1897).

Where the affidavit partially follows the language of the statute in regard to debt not being secured, but fails to state that it is not secured by “pledge of personal property,” and contains no statement equivalent to that, the affidavit is not sufficient. Knutsen v. Phillips, 16 Idaho 267, 101 P. 596 (1909).

Affidavit must negative every form of security mentioned in statute. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

Affidavit should set out specifically that indebtedness sued on has not been secured “by any mortgage or lien upon real or personal property or by any pledge of personal property,” or words to that effect. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

Statute provides for affidavit in two classes of cases: (1) Where debt has not been secured, which fact should be stated in affidavit; (2) where debt has been secured but security has become valueless; in latter case it is not necessary that affidavit should state that debt has not been secured, but only that security originally given has become valueless without fault of plaintiff. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922); Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

Where it appears that debt which is subject of action was secured within meaning of this section at time affidavit was made, writ should be dismissed. Hill v. Bennett, 37 Idaho 161, 215 P. 471 (1923).

Where affidavit for attachment alleges that debt sued upon had not been secured by any of the specific kinds of security designated in this section, a joint checking account of plaintiff and defendant does not constitute such security as to bar the action. Citizens Auto. Inter-Ins. Exch. v. Andrus, 70 Idaho 114, 212 P.2d 406 (1949).

Conclusion of court was that the contract to sell real and personal property of a ranch and the farming machinery and equipment was an executory contract of sale under the terms of which appellants retained title as security for the payment of the purchase price and this being so the contract was one expressly providing for security within the meaning of this section and§ 8-501, and the attachment was properly discharged. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964). The claim must be one founded upon a contract for the direct payment of money, the payment of which has not been secured in any degree by any of the means specified in the statute. If it has been secured, however inadequately, attachment cannot issue unless such security has, without any act of the plaintiff or the person to whom the security was issued, become valueless. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964).

Averment of Amount Due.

Affidavit which fails to specify amount of indebtedness sought to be recovered over and above all legal set-offs and counterclaims is fatally defective and gives court no jurisdiction to issue writ. Kerns v. McAulay, 8 Idaho 558, 69 P. 539 (1902); Sunderlin v. Warner, 42 Idaho 479, 246 P. 1 (1926).

An error in attachment affidavit in claiming larger debt than that found due by the judgment does not vitiate the attachment. Finney v. Moore, 9 Idaho 284, 74 P. 866 (1903).

Averment of Several Grounds in Alternative.

An affidavit alleging two or more grounds of attachment, in the alternative, is insufficient, and writ issued thereon is properly discharged. Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510 (1919).

Averment That Debt Is Due.

This section does not require, expressly or by implication, that the affidavit contain an allegation that “the debt is due.” Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821 (1908).

The statute does not require either by express terms or by implication that the affidavit shall contain an allegation that the debt is due. Bannock Title Co. v. Lindsey, 86 Idaho 583, 388 P.2d 1011 (1963).

Compliance with Statute.

The affidavit must set forth the facts which show or prove the cause of action to be on a contract, express or implied. It is not enough for plaintiff to swear that it is upon an express or implied contract. Carter v. Watson, 52 Idaho 805 (1866).

Where it is shown that the suit is based upon a promissory note providing that the express condition of the sale and purchase of the goods for which the note was given is such that the title, ownership, or possession does not pass until the note and interest is paid in full, and that the payee has full power to declare the note due and take possession of the goods at any time, he may deem himself insecure, even before the specified maturity of same, unless it is shown by the affidavit that the security is beyond his reach or has become valueless through no fault of his, attachment cannot be maintained upon action for purchase price. Mark Means Transf. Co. v. Mackinzie, 9 Idaho 165, 73 P. 135 (1903).

It is not necessary to allege any other facts than those specified in statute. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821 (1908).

Affidavit must substantially conform to provisions of statute; otherwise, attachment will be discharged. Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893 (1922).

Affidavit must be liberally construed and must be held sufficient if it appears that language therein used is substantially equivalent to that used in statute. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922) (quoting Knutsen v. Phillips, 16 Idaho 267, 101 P. 596 (1909)). When affidavit is sufficient on its face, court has jurisdiction to issue writ. Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

This section authorizes issuance of writ only upon affidavit that defendant is indebted to plaintiff over and above all legal set-offs and counterclaims upon judgment or contract for direct payment of money. Sunderlin v. Warner, 42 Idaho 479, 246 P. 1 (1926).

An affidavit for attachment which sets forth the particular allegations required by the statute is sufficient. B. J. Carney & Co. v. Murphy, 68 Idaho 376, 195 P.2d 339 (1948).

Where the facts alleged in the affidavit meet the requirement of the statute, it is sufficient. Citizens Auto. Inter-Ins. Exch. v. Andrus, 70 Idaho 114, 212 P.2d 406 (1949).

Where the bank’s affidavit did not establish probable cause and the in-chambers conversation with the bank’s counsel was unrecorded, the record reflected nothing from which the court could determine that the statutory requirements were met at the time the writ was issued; thus, the writ should not have been issued, and the attachment was therefore wrongful. Valley Bank v. Dalton, 110 Idaho 87, 714 P.2d 56 (Ct. App. 1985).

Danger to Property.

Subdivision (c)(3) of this section requires that the danger of damage to or impairment of the property be established by “specific facts”; mere conclusions that some danger exists are inadequate. Valley Bank v. Dalton, 110 Idaho 87, 714 P.2d 56 (Ct. App. 1985).

The affidavit of the bank did not indicate the vehicles were in immediate danger of removal, destruction, sale, or concealment, nor did it give any specific facts indicating that the owners were threatening to remove, destroy, sell, or conceal the vehicles; therefore, the affidavit alone did not justify attachment of the vehicles. Valley Bank v. Dalton, 110 Idaho 87, 714 P.2d 56 (Ct. App. 1985).

The fact that the owners had deposited checks which were drawn on an account with insufficient funds and then failed to remedy the situation did not indicate danger to the vehicles; therefore, these allegations in the complaint, incorporated by reference in the bank’s affidavit, did not state a basis for issuance of a writ of attachment to seize the owners’ vehicles. Valley Bank v. Dalton, 110 Idaho 87, 714 P.2d 56 (Ct. App. 1985).

Double Causes of Action.

Where an attachment is sought on two causes of action and the affidavit is false as to one cause stated and a single writ is issued to cover both causes of action, the attachment will be dissolved on motion as to both causes of action. Vollmer v. Spencer, 5 Idaho 557, 51 P. 609 (1897).

Where two causes of action are stated and the statutory grounds exist, plaintiff may have separate writs issued as to each cause of action or he may procure one writ for both causes. Vollmer v. Spencer, 5 Idaho 557, 51 P. 609 (1897).

Failure to Allow Attorneys’ Fees.

False Affidavit.

Where, in an attachment action brought in the probate court, the affidavit in attachment claimed attorney fees, which were allowed in the probate court, and, on appeal to the district court the judgment was reduced in an amount equal to that allowed for attorney fees in said probate court, failure to allow attorney fees in the district court will be considered an inadvertence since plaintiff in attachment was entitled thereto by reason of the fact that the note sued on provided therefor, and the variance between the affidavit and the recovery in the district court was not sufficient to render the attachment void. McCall v. First Nat’l Bank, 47 Idaho 519, 277 P. 562 (1929). False Affidavit.

Where an attachment affidavit is false, court has no jurisdiction to issue writ. Murphy v. Montandon, 3 Idaho 325, 29 P. 851 (1892).

Indebtedness of Defendant to Plaintiff.

A negotiable promissory note is a contract for the direct payment of money, and this characteristic is not destroyed by the provision for a reasonable attorney’s fee in case of suit or action, for it still remains an unconditional promise for the direct payment of money. Twin Falls Nat’l Bank v. Reed, 44 Idaho 573, 258 P. 526 (1927).

Nonresidents.

In attachment proceeding against nonresident, the affidavit does not have to show the lack or failure or valuelessness of any security. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953).

Section 8-501, this section, and§ 5-508 clearly authorized an action against a nonresident, and attachment of his property within the state for the satisfaction of a debt owing to the plaintiff and a judgment in favor of the plaintiff in such an action based upon substituted service is valid and enforceable to extent of the value of the properties seized. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Since Idaho statutes authorized substitute service in an action against a non-resident for debt, and service being essential to the maintenance of such an action, the court did not err in denying the motion to quash service of summons secured by substitute service on a nonresident husband in an action by divorced wife to recover past due installments of child support on the ground that the action was not in rem. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Security Becoming Valueless.

Simple statement that security has become worthless is insufficient without further statement that it became so “without any act of the plaintiff, or the person to whom the security was given.” Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893 (1922); Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090 (1929).

By foreclosure sale, property becomes valueless as security. Theory appears to be that exhaustion of security by foreclosure is by writ of law and through authority of mortgagor or pledgor. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

Where property covered by chattel mortgage has been sold by consent of parties without formality of foreclosure proceedings, it has become valueless without consent of mortgagee within meaning of this section. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

Security may become valueless by reason of physical destruction of property, or by removal of property from jurisdiction of court, or by its concealment or theft, and in all these cases, clearly, it is without any act of claimant or person to whom security is given. Farmers State Bank v. Gray, 36 Idaho 49, 210 P. 1006 (1922).

Security Outside of State.

It is not necessary that affidavit disclose that payment of debt “has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property,” when it appears from such affidavit that debt was originally secured and “that such security, without any act of the plaintiff, has become valueless.” Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926). Security Outside of State.

The fact that a debt was secured and that the property securing the same is beyond the territorial limits of the state is sufficient to prevent the issuance of attachment. Mason v. Jansen, 45 Idaho 354, 263 P. 484 (1927).

Time of Filing.

Since an affidavit for attachment must show existence of jurisdictional facts at the time of the issuance of the writ, an affidavit filed twenty-eight (28) days before the issuance of the writ is not sufficient to support writ when issued, and writ should be discharged. Murphy, Grant & Co. v. Zaspel, 11 Idaho 145, 81 P. 301 (1905).

Am. Jur. 2d.

C.J.S.

Cross References.

Averment as to security,§ 8-501.

General form of undertaking,§ 12-613.

Justification of bail on arrest,§ 8-118.

Justification of sureties,§ 12-614; Idaho R. Civ. P. 66 (a).

State, county or city need not give bond,§ 12-615; Idaho R. Civ. P. 65(c).

Statutory form of undertaking,§ 12-613; Idaho R. Civ. P. 66(a). Surety insurer may be sole surety,§ 41-2604.

Amendment of Defective Bond.

When the original bond was merely irregular and subject to amendment, it was the duty of the trial court to permit the filing of the surety bond as of the date it was tendered. Gordon v. Kerr, 53 Idaho 106, 21 P.2d 930 (1933).

Application of Section.

Action for damages for trespass to personal property of plaintiff, namely ousting plaintiff from possession and control of his truck and contents was not an action for wrongful attachment under this section nor a case in which plaintiff was entitled to appear in the probate court and move for dissolution pursuant to§ 8-534, the remedy and rights given by those sections being available only to defendant in the case in which attachment is issued; plaintiff’s only remedy was either by way of intervention in the attachment case,§ 5-322 (repealed, now see Idaho R. Civ. P. 24(a) through 24(c)), or by a third party claim under§§ 8-532 (repealed) and 11-203. Jaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).

Attaching Creditor Not Entitled to Notice.

Attachment Lien Not Unqualified.

Since, under the provisions of this section, the attaching creditor is not deprived of a vested lien, the fact that no notice of proceeding against him is therein provided for does not operate to deprive him of his property without due process of law or of the equal protection of the law, and this section does not contravene the provisions of the 14th Amendment to the Federal Constitution. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919). Attachment Lien Not Unqualified.

The attaching creditor under this section does not have an unqualified lien, but takes his lien subject to the provision that under the circumstances mentioned in this section, other creditors will be entitled to share in the proceeds of the attached property pro rata. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919).

Clerical Errors.

A clerical error in the attachment bond, such as the insertion of the words “under execution,” does not vitiate the bond where same substantially indemnifies defendant. Simmons Hdwe. Co. v. Alturas Com. Co., 4 Idaho 334, 39 P. 550 (1895).

Clerical errors or irregularities in preparation of papers do not render party liable in damages for wrongful attachment. Taylor v. Fluharty, 35 Idaho 705, 208 P. 866 (1922).

Constitutionality and Purpose.

Constitutionality of this statute considered and upheld. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919); Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

Manifest purpose of act is to provide fair and equitable distribution of available and attached assets of debtor. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919); Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

The purpose of this statute is to give security to the attachment debtor upon which recovery might be had in the event damages are sustained by reason of the attachment. Gordon v. Kerr, 53 Idaho 106, 21 P.2d 930 (1933).

Federal Bankruptcy Law.

In order for a State Insolvency Law to be suspended by the Federal Bankruptcy Act, the State Law must provide for the discharge of the debtor, and since this section contains no such provision it is not an insolvency law, and its operation is not suspended by the Federal Bankruptcy Act. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919).

Intervention.

One claiming an interest in attached property has a right to intervene in the action in which it is attached. First Nat’l Bank v. Denbrae Sheep Co., 44 Idaho 447, 258 P. 365 (1927).

Judgment Creditor Entitled to Prorate.

When property is attached on process out of the district court, all judgment creditors coming within the hereinabove prescribed rule are entitled to prorate, the theory being that the first attachment holds the property for the benefit of all creditors who reduce their claims to judgment within 60 days, thereby relieving them from the responsibility and the debtor from the costs of additional attachment process. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919).

Judgment creditors are entitled to prorate without reference to whether such judgments have been procured in the district court or in a justice or probate court or have been docketed in the district court within the 60-day period or at all. Greene v. Rice, 32 Idaho 504, 186 P. 249 (1919).

Jurisdiction.

Where first creditor in attachment proceeding obtained an order for sale of personal property, and a second creditor in another proceeding in which debtor and first creditor were parties obtained an order to share in proceeds of sale, the court had jurisdiction in second proceeding to entertain a motion to vacate the sale, since proceedings were interrelated and parties were before the court. Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., 77 Idaho 309, 291 P.2d 874 (1955).

Justice’s Courts.

The provisions of this section for prorating proceeds of attached property after advertisement of notice do not apply to justice’s court practice. Kimball v. Raymond, 9 Idaho 176, 72 P. 957 (1903).

Levy Unnecessary.

Levy of execution before suing on bond is unnecessary where judgment debtor has been adjudicated a bankrupt. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Publication of Notice.

Notice of issuance of writ of attachment required to be given by clerk is intended for protection and benefit of other creditors of defendant, and failure to give notice is not available to defendant in attachment proceeding, and does not enable him to avoid the attachment or subsequent execution sale thereunder. Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038 (1910).

It is duty of plaintiff in attachment action to inform himself if clerk has posted notice and require him to act in case of failure. Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

Purpose of notice of attachment is to give creditors notice, so if they desire to prorate they may prosecute their claims against debtor. Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

Recovery of Costs and Damages.

This section provides that a party aggrieved by a wrongful attachment may recover costs and damages sustained “by reason of the attachment.” This recovery may include attorney fees incurred in successfully challenging the attachment. However, when the attachment itself is not challenged, but the aggrieved party defeats the attachment simply by prevailing in the dispute over the alleged debt, the right to recover attorney fees under this section is unclear. Cole v. Kunzler, 115 Idaho 552, 768 P.2d 815 (Ct. App. 1989).

Remedy for Wrongful Attachment.

One against whom attachment was wrongfully issued is entitled to recover, as damages, expenses which he incurred in defending against attachment. Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862 (1920).

As general rule, expenses incurred in defense of main action are not recoverable against surety, except when trial of main action is necessary to vacate attachment. Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862 (1920).

Right to Prorate.

Counsel fees may be recovered as damages in defending against attachment, but they are not generally recoverable for services in defending principal action. Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862 (1920). Right to Prorate.

Under this section, a creditor, in order to be entitled to prorate in the proceeds of attached property, must both commence his action within the statutory period and prosecute same to final judgment within the statutory period. Howard v. Grimes Pass Placer Mining Co., 21 Idaho 12, 120 P. 170 (1911).

Creditors can not be deprived of their right to prorate by failure of clerk to post notice of attachment, if they commence their actions within statutory limit. Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

Right to prorate is purely statutory and creditors have no rights except as obtained from statute. Quirk v. Diana Mines Co., 34 Idaho 30, 198 P. 672 (1921).

Appointment of receiver does not operate in derogation of provision which allows creditor who prosecutes his claim to judgment within statutory period to come in and prorate with attaching creditor. National City Bank v. Idaho Lumber Co., 39 Idaho 677, 229 P. 663 (1924).

Recovery could not be had on redelivery bonds after dismissal of attachment lien by stipulation, where plaintiff had not made issue as to right to prorate. First Nat’l Bank v. Denbrae Sheep Co., 44 Idaho 447, 258 P. 365 (1927).

Where action was not commenced within thirty (30) days after levy of attachment in another case against same debtor, judgment was inferior to lien acquired by the attachment. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

Where creditors’ actions in federal court were not commenced within thirty (30) days after attachment levy in actions in state court, debtor’s assignee redeeming from sale under judgments in state court took subject to liens of federal court judgments. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

Attachment need not be levied provided action is brought within thirty (30) days after levy of first attachment and diligently prosecuted to judgment. Linch v. Perrine, 51 Idaho 152, 4 P.2d 353 (1931).

Statute of Limitations.

Statute of limitations begins to run immediately upon return of execution as to an action on bond given under this section. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Sufficiency of Bond.

While the clerk has a discretion in fixing the amount of the undertaking, he should in all cases require an undertaking in not less than the amount of the claim sued for. Willman v. Friedman, 3 Idaho 734, 35 P. 37 (1893); Finney v. Moore, 9 Idaho 284, 74 P. 866 (1903).

Failure of the clerk to require an undertaking, when amount sued for is in excess of $200, equal to amount sued for is not a ground for dissolving the attachment. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821 (1908).

Undertaking following wording of statute is sufficient. Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862 (1920).

Objections to the sufficiency of the sureties on the original bond were waived by failing to except thereto within the statutory time. Gordon v. Kerr, 53 Idaho 106, 21 P.2d 930 (1933).

Suits on Bonds.

The clerk has a large discretion in fixing the amount of the undertaking, and the amount so fixed should not be less than the amount of the claim sued for. Gordon v. Kerr, 53 Idaho 106, 21 P.2d 930 (1933). Suits on Bonds.

Where there is no showing that the expense of employing counsel was incurred because of the attachment nor that it would not have been incurred had no attachment been levied, attorney’s fees are not recoverable against the surety on the attachment bond on dissolution. Randall v. United States Fidelity & Guaranty Co., 53 Idaho 310, 23 P.2d 319 (1933).

Defendant in attachment must first recover judgment against the plaintiff in attachment, and a defendant in replevin must first cover judgment against the plaintiff in replevin for the return of the property, where the property has been seized, and then resort, without success, to plaintiff’s attachment or replevin bond, as the case may be, before a cause of action accrues against the sheriff for failure to perform some duty in the premises imposed upon him by law, and these facts are jurisdictional. Oaks v. American Sur. Co., 58 Idaho 482, 76 P.2d 932 (1938).

Validity of Attachment.

Statement of amount in writ as greater sum than that stated in affidavit does not render attachment void or wrongful within meaning of statute. Taylor v. Fluharty, 35 Idaho 705, 208 P. 866 (1922).

Failure of affidavit to allege that action was not prosecuted to hinder, delay or defraud creditors constitutes merely an irregularity and does not render proceedings wrongful within meaning of statute. Taylor v. Fluharty, 35 Idaho 705, 208 P. 866 (1922).

Term “wrongful” within meaning of this section relates to issuance of attachment upon cause of action not included in§ 8-501 or to cases where statements in affidavit are false, rather than to mere irregularities in papers. Taylor v. Fluharty, 35 Idaho 705, 208 P. 866 (1922).

Clerk could not issue second writ of attachment based on undertaking in first attachment where first attachment was declared void. Rougle v. Turk, 76 Idaho 427, 283 P.2d 915 (1955).

Am. Jur. 2d.

C.J.S.

Cross References.

Court seal to be affixed to writs,§ 1-1616.

Discharge of writ when lien lost,§ 8-538.

Nonjudicial days, writs of attachment may be issued and served on,§ 1-1607.

Separate property exempt from execution on spouse’s separate debt,§ 11-204.

Compiler’s Notes.

The bracketed reference to§ 8-502 near the beginning of the second sentence was inserted by the compiler to correct the reference.

Delay in Issuing Execution.

Failure of judgment creditor to take out an execution against the judgment debtor within the 16 days between the date of the judgment and the date on which the debtor filed his petition in bankruptcy did not preclude the creditor from urging that the debtor’s bankruptcy relieved him of the duty of taking out an execution against the debtor as a “condition precedent” to action against the sureties on the bond given to discharge the writ of attachment. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Effect of Bankruptcy.

The issuance and return of an execution against the judgment debtor, as required by statute, is not a “condition precedent” to an action against surety on a bond given to discharge writ of attachment, where the debtor was adjudicated a bankrupt. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Issuance of Execution.

The issuance and return of an execution, unsatisfied in whole or in part, is a “condition precedent” to the maintenance of an action on an undertaking given for release of writ of attachment. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Lien on Pledged Property.

Service of notice of garnishment on pledgee gives plaintiff in action of attachment against owner lien on pledged property. Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102 (1926), overruled on other grounds, Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

Limitation of Actions.

Statute of limitations begins to run against a bond given under§§ 8-503, 8-504 immediately on the return of the execution, and the return must be made within a reasonable time. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Statutory Bond.

A bond given to a sheriff to discharge a writ of attachment before the sheriff had completed the attachment thereunder was a “statutory bond.” Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Substantial Compliance Required.

The statute authorizing the discharge of a writ of attachment upon an execution of an undertaking grants provisional remedies and must be substantially complied with. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Cited First Nat’l Bank v. Lieuallen, 4 Idaho 431, 39 P. 1108 (1895); Williams v. Olden, 7 Idaho 146, 61 P. 517 (1900). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 8-505. Property subject to attachment — Sale under execution.

The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon and all debts due such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.

History.

C.C.P. 1181, § 322; R.S., R.C., & C.L., § 4306; C.S., § 6783; I.C.A.,§ 6-505.

Cross References.

Exemptions from executions,§ 11-204.

Child Support Action.

Since Idaho statutes authorized substitute service in an action against a nonresident for debt, and service being essential to the maintenance of such an action, the court did not err in denying the motion to quash service of summons secured by substitute service on a nonresident husband in an action by divorced wife to recover past due installments of child support on the ground that the action was not in rem. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Am. Jur. 2d.

C.J.S.

ALR.

§ 8-506. Execution of writ.

The sheriff to whom the writ is directed and delivered must execute the same without delay, and if the undertaking mentioned in section 8-506C, Idaho Code, be not given, as follows:

1. Real property standing upon the records of the county in the name of the defendant must be attached by filing with the recorder of the county a copy of the writ, together with a description of the property attached and a notice that it is attached.
2. Real property or an interest therein belonging to the defendant and held by any other person, or standing on the records of the county in the name of any other person, must be attached by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property and any interest of the defendant therein, held by or standing in the name of such other person (naming him), are attached. The recorder must index such attachment, when filed, in the names of both, of the defendant and of the person by whom the property is held or in whose name it stands on the records.
3. Personal property capable of manual delivery must be attached by taking it into custody.
4. Stock or shares, or interest in stock or shares, of any corporation or company must be attached by leaving with the president or other head of the same, or the secretary, cashier or other managing agent thereof, a copy of the writ and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ; provided, that securities as defined in section 28-8-102, Idaho Code, must be attached as provided in section 28-8-112, Idaho Code.
5. Debts and credits and other personal property not capable of manual delivery must be attached by leaving with the person owing such debts, or having in his possession or under his control such credits or other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits or other personal property in his possession or under his control, belonging to the defendants, are attached in pursuance of such writ.

History.

C.C.P. 1881, § 323; R.S. & R.C., § 4307; am. 1911, ch. 162, § 1, p. 559; reen. C.L., § 4307; C.S., § 6784; I.C.A.,§ 6-506; am. 1974, ch. 307, § 6, p. 1793; am. 1998, ch. 243, § 1, p. 802.

Cross References.

Bank operating branches or more than one officer receiving deposits, service of writ on,§ 8-507.

Delivery of writ of sheriff to successor on expiration of time of office,§ 31-2223.

Discharge of writ when lien lost,§ 8-538.

Officer must exhibit process on demand,§ 31-2214.

Sheriff is justified by and must execute process regular on its face, notwithstanding defects in proceedings,§ 31-2213. Sheriff must endorse time of reception on process,§ 31-2202.

Sheriff’s fee for attachment on property,§ 31-3203; for preserving property under attachment,§ 31-3203.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Action Against Sheriff.

Where it does not appear that the sheriff knew that the cattle were not subject to attachment, the cause of action against the sheriff did not accrue until the receiver made demand for the possession of the cattle and the sheriff refused to comply with the demand. Oaks v. American Sur. Co., 58 Idaho 482, 76 P.2d 932 (1938).

Attachment Against Nonresident.

While attachment of all of nonresident’s property within jurisdiction of court will not support personal judgment against such nonresident upon whom personal service has not been had, where property has been attached, such attachment brings property into jurisdiction and judgment entered in such case is good as to property attached. Sunderlin v. Warner, 42 Idaho 479, 246 P. 1 (1926).

In suit attacking validity of attachment and judgment against nonresident defendant by defendant’s children on ground that children were owners of realty involved, defendant in attachment was not a necessary party. Welch v. Morris, 49 Idaho 781, 291 P. 1048 (1930).

Levy and Lien.

The right of attachment is purely of statutory regulation, and, where the statute provides the procedure in such cases, the plaintiff is required to pursue such cause in order to sustain his action against the garnishee. Eagleson v. Rubin, 16 Idaho 92, 100 P. 765 (1909).

A lien of attachment, even if valid by reason of having been made in substantial compliance with this section, is lost when the attaching officer or keeper permits one claiming the right of possession thereof to take and retain possession of the same, since the lien of the attaching creditor is dependent upon continuance of the possession by the attaching officer. American Fruit Growers, Inc. v. Walmstad, 44 Idaho 786, 260 P. 168 (1927).

Mandatory Procedure.

When an officer proceeds to execute an attachment, he is authorized to seize any personalty found in the defendant’s possession, if he has no reason to suppose it to be the property of another; if an officer knows when he attaches personal property that it does not belong to the defendant, the attachment is at once necessarily wrongful. Oaks v. American Sur. Co., 58 Idaho 482, 76 P.2d 932 (1938). Mandatory Procedure.

This section provides a mandatory procedure for levying on real property pursuant to a writ of execution as well as a writ of attachment. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Personal Property.

An attachment on logs in and on the banks of a stream is sufficiently levied by sheriff’s taking possession of the logs on the banks and employing men to catch and bank remainder of the logs. Falk-Bloch Mercantile Co. v. Branstetter, 4 Idaho 661, 43 P. 571 (1896).

Tangible property susceptible of manual seizure and delivery must, on attachment, be actually seized and taken into possession by the levying officer, who must maintain actual custody and control of property by such means as will exclude others from such custody. American Fruit Growers, Inc. v. Walmstad, 44 Idaho 786, 260 P. 168 (1927).

A warehouse is “personal property not capable of manual delivery.” Quarles v. Citizens’ Nat’l Bank, 31 F.2d 40 (9th Cir. 1929).

An action for damages for trespass to the personal property of the plaintiff did not depend upon the validity of the attachment proceedings against the debtor nor upon the validity of any purported attachment lien in favor of the creditor, it being sufficient in this case that the officer and the attorney for the creditor, armed with the summons and writ of attachment actually ousted the plaintiff from the possession and control of the truck and peaches, such being an invasion of the defendant’s right of property for which defendant was liable whether the officer and attorney perfected an attachment lien or not. Jaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).

Real Property.

The filing of a notice of levy, together with a copy of the writ and description of the property attached, is a sufficient levy of attachment on real property. First Nat’l Bank v. Lieuallen, 4 Idaho 431, 39 P. 1108 (1895).

Description of property must be sufficient to give notice to a reasonably prudent man of identity of property attached. First Nat’l Bank v. Sonnelitner, 6 Idaho 21, 51 P. 993 (1898).

Personal notice to the defendant is not equivalent to posting copies in a conspicuous place on the land and is insufficient to create a lien upon the property. Williams v. Olden, 7 Idaho 146, 61 P. 517 (1900).

The presumption of law is that party in possession is the representative of defendant who is owner of land, and that notice to him that the land is attached will reach owner. Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038 (1910).

Filing of copy of writ of attachment, description of real property alleged to have been attached, and notice of attachment is absolutely necessary to constitute a lawful levy upon real estate. Long v. Burley State Bank, 30 Idaho 392, 165 P. 1119 (1917).

Attachment against realty, which at time thereof had been conveyed by recorded deed from defendant’s mother, was void where statutory notice had not been filed. Welch v. Morris, 49 Idaho 781, 291 P. 1048 (1930).

Shares of Stock.

Where a judgment becomes a lien against real property, it is necessary to levy upon the property by recordation of a writ of execution. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985). Shares of Stock.

Shares of stock in a corporation can only be subjected to a debt by seizure under attachment or execution as provided by statute and do not pass on sale under execution of land irrigated by company by which stock is issued. Wells v. Price, 6 Idaho 490, 56 P. 266 (1899).

Where stock has been pledged and transferred by endorsement and delivery, but the transfer is not entered on the books, a subsequent attachment issued at instance of a creditor of pledgor is valid only against interest of pledgor remaining after payment of the debt to pledgee. Mapleton Bank v. Standrod, 8 Idaho 740, 71 P. 119 (1902).

Shares of stock in irrigation project are merely incidental to the ownership of water rights and are subject to lien of levy on land as appurtenant thereto. Bothwell v. Keefer, 53 Idaho 658, 27 P.2d 65 (1933).

Validity of Officer’s Return.

Evidence relative to possession of property alleged to have been attached was sufficient to conclusively impeach the attaching officer’s return showing attachment of the property by taking it into his possession and placing a keeper in charge thereof. American Fruit Growers, Inc. v. Walmstad, 44 Idaho 786, 260 P. 168 (1927).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The Idaho uniform commercial code, referred to in this section, is compiled in chs. 1 to 12 of title 28, Idaho Code.

Effective Dates.

Section 31 of S.L. 2001, ch. 208 provided that the act should take effect on and after July 1, 2001.

Am. Jur. 2d.

C.J.S.

Cross References.

Arrest in civil cases, § 8-01 et seq.

Bail upon civil arrest,§ 8-109.

Compiler’s Notes.

The reference to “the code” in the first sentence is to the Code of Civil Procedure, a division of the Idaho Code, consisting of titles 1 through 13.

Cross References.

Debtor of judgment debtor may satisfy execution,§ 11-503.

Debts owing by state of Idaho subject to execution or garnishment after judgment,§ 11-202.

Discharge of writ when lien lost,§ 8-538.

Supplementary proceedings against debtor of defendant’s debtor, stay of transfer of property,§ 11-507.

Prior Laws.

Former§ 8-507, Garnishment — Service of writ of attachment, execution, or garnishment — Banks, which comprised C.C.P. 1881, § 324; R.S., R.C., & C.L., § 4308; C.S., § 6785; am. 1921, ch. 202, § 1, p. 409; I.C.A.,§ 6-507; am. 1935, ch. 78, § 1, p. 132; am. 1991, ch. 165, § 1, p. 395; am. 1995, ch. 330, § 1, p. 1099; am. 2003, ch. 158, § 1, p. 446, was repealed by S.L. 2017, ch. 303, § 2, effective July 1, 2017.

County Sheriffs.

County sheriffs were properly named as defendants in a suit challenging the constitutionality of Idaho’s postjudgment garnishment procedures because they had the statutory duty to enforce and administer allegedly unconstitutional state statutes. Chaloux v. Killeen, 886 F.2d 247 (9th Cir. 1989).

Lien Acquired by Service.

Plaintiff in attachment obtains lien on pledged property of defendant in hands of pledgee upon service of notice upon latter. Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102 (1926), overruled on other grounds, Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

Service by Mail.

By service in manner provided by statute, while possession is not necessarily disturbed, lien is obtained on debtor’s title to property in hands of garnishee. Sullivan v. Maybey, 45 Idaho 595, 264 P. 233 (1928). Service by Mail.

Divorce decree, in which husband was awarded all the equity in the homestead subject to an obligation to pay the wife a portion of her equity, divested the wife of her real property interest in the house and converted it into a lien, which was a personal property interest. Therefore, the wife was not entitled to relief from a sheriff’s sale of the homestead arising from her failure to make certain payments to the husband because she was provided notice via mail for an execution against personal property. Chavez v. Barrus, 146 Idaho 212, 192 P.3d 1036 (2008).

Suit Against Garnishee.

Where garnishee is sued upon notes which are property of a defendant in the attachment suit and were transferred to plaintiff in suit against garnishee to defeat and defraud creditors of defendant in attachment suit, the suit against garnishee should be suspended until garnishee’s liability in attachment suit is determined. Van Ness v. McLeod, 3 Idaho 439, 31 P. 798 (1892).

Right of attachment is of purely statutory regulation, and where statute provides procedure in such cases, plaintiff must pursue such course in order to sustain his action against garnishee. Eagleson v. Rubin, 16 Idaho 92, 100 P. 765 (1909).

ALR.

Issue in garnishment as triable to court or to jury. 19 A.L.R.3d 1393.

Liability insurer’s potential liability for failure to settle claim against insured as subject to garnishment by insured’s judgment creditors. 60 A.L.R.3d 1190.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Am. Jur. 2d.

C.J.S.

Cross References.

Payment to sheriff discharges garnishee’s debt,§ 8-510.

Sales on execution,§ 11-302.

Sale of Perishable Property.

Sheriff has no right to assume to sell attached property as perishable without an order of the court, which order must be predicated upon a sworn statement by sheriff showing character of property claimed to be perishable and amount thereof. Work v. Kinney, 5 Idaho 716, 51 P. 745 (1898).

Cross References.

Sales under execution,§ 11-302 et seq.

C.J.S.

§ 8-527. Claim of property by third person or as exempt.

If any personal property attached, garnished or executed upon be claimed by a third person as his property, or by the defendant as exempt property, the same rules shall prevail as to the contents and making of said claim, and as to the holding of said property, as in the case of a claim after levy upon execution, as provided in section 11-203, Idaho Code.

History.

C.C.P. 1881, § 330; R.S. & R.C., § 4314; am. 1913, ch. 109, § 11, p. 430; reen. C.L., § 4314; C.S., § 6805; I.C.A.,§ 6-527; am. 1939, ch. 12, § 1, p. 28; am. 1991, ch. 165, § 7, p. 395.

Bond.

Where a sheriff levied on personal property under attachment, and, while holding under such levy, received a second attachment, and levied on the same property under the second attachment, and afterwards, but before sale on either a third person claimed the property, the second attaching creditor indemnified the sheriff against loss under the second attachment, and the sheriff sold under execution in the first attachment suit, and paid all the proceeds to the first attaching creditor, the claimant of the property having recovered of the sheriff the value of the property sold, held: (1) that the sheriff could not recover on the indemnifying bond of the second attaching creditor; (2) that since the complaint did not claim, nor the proof show, that after the levy the sheriff did any act under the second attachment, the second attaching creditor was not liable; (3) that in such case, when plaintiff had rested, it was not error for the court to instruct the jury to find for the defendant; (4) and that in such case, the effect of an indemnifying bond must be determined by its own conditions. Fury v. White, 2 Idaho 662, 23 P. 535 (1890).

Where an attaching plaintiff never was put to the burden of indemnifying the sheriff because the parties stipulated that the third party could substitute a bond for the value of the automobile in question with the bond to be held by the sheriff in place of the vehicle, the sheriff was relieved of any potential liability to the third party for which indemnity would be sought from the attaching plaintiff and the reason for requiring verification of the claim did not exist and the provisions of§ 11-203 and this section were not applicable; thus, the lack of verification did not bar the subsequent judicial proceeding to determine the third party’s claim to the car. Slayton v. Zapp, 108 Idaho 244, 697 P.2d 1258 (Ct. App. 1985).

Am. Jur. 2d.

C.J.S.

Cross References.

Penalty for neglect or refusal of sheriff to pay over money,§ 31-2207.

Sales on execution,§ 11-302 et seq.

Sheriff’s fee for advertising property for sale on attachment,§ 31-3203.

Cross References.

Executions generally,§ 11-301 et seq.

Penalty for neglect or refusal of sheriff to pay over money,§ 31-2207.

Sheriff’s commissions for receiving or paying over money on execution,§ 31-3203.

Foreclosure of Chattel Mortgages.

Statutes relating to sale of attached property are not carried into law relating to summary foreclosure of chattel mortgages by reference or otherwise and have no application thereto. South Side Live Stock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481 (1928).

Cross References.

Supplementary proceedings,§ 11-501 et seq.

Issuance of Execution.

The issuance and return of an execution, unsatisfied in whole or in part, is a “condition precedent” to the maintenance of an action on an undertaking given for release of writ of attachment. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Am. Jur. 2d.

C.J.S.

Construction.

Under plain provisions of this section, judgment in favor of defendant dissolves attachment. Washington County v. Weiser Nat’l Bank, 43 Idaho 618, 253 P. 838 (1927).

Final judgment for defendant dissolved attachment irrespective of any reference thereto. Standlee v. Hawley, 50 Idaho 269, 295 P. 630 (1931).

Under the provisions of this section, standing alone, an attachment is discharged and becomes a nullity when judgment is entered in favor of defendant against the plaintiff in an action in which an attachment is a part thereof and all property that was attached must be delivered to the defendant or his agent. Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963).

Time Dissolution Takes Effect.

The court determined that the judgment for defendant in the justice’s court operated as a dissolution of the attachment and released the attached property and the additional undertaking, not having been filed until seven days after the entry of the judgment, did not stay the self executing quality of the judgment appealed from. Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963).

C.J.S.

§ 8-532. Discharge of attachment on giving bond. [Repealed.]

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 335; R.S., R.C., & C.L., § 4319; C.S., § 6810; I.C.A.,§ 6-532, was repealed by S.L. 1974, ch. 307, § 11.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 336; R.S., R.C., & C.L., § 4320; C.S., § 6811; I.C.A.,§ 6-533, was repealed by S.L. 1974, ch. 307, § 12.

Amended Affidavit.

Where an amended affidavit for attachment showed that the original affidavit on which the attachment was issued was false in representing that the payment of the debt sued on had not been secured by a mortgage, in absence of a showing that the false statement in the original affidavit was made innocently, the trial judge was not bound to accept as true the amended affidavit stating that the security which had been given had become valueless. Casebeer v. Todd, 62 Idaho 702, 115 P.2d 746 (1941).

Collateral Attack Not Permitted.

Right to challenge truth of allegations of affidavit is given to defendant to be exercised in action. It can not be collaterally attacked, if good on its face, except for fraud or collusion. Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

Where it appears from record that court has jurisdiction to issue attachment, stranger to action can not establish, in independent action, falsity of affidavit and, thereby, invalidate lien of attachment. Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

Damages for Wrongful Attachment.

One against whom an attachment has wrongfully issued is entitled to recover, as a part of his damages for the wrong, the expenses which he incurred in defending against such attachment. Moseley v. Fidelity & Deposit Co., 33 Idaho 37, 189 P. 862 (1920).

Grounds for Discharge.

The only grounds upon which an attachment can be discharged is that writ is improperly or illegally issued; that the property levied upon is exempt from execution or is a homestead is not ground for discharging the writ. Mason v. Lieuallen, 4 Idaho 415, 39 P. 1117 (1895).

The attachment will not be dissolved for mere irregularity in the issuance of the summons. Ridenbaugh v. Sandlin, 14 Idaho 472, 94 P. 827 (1908).

A motion to dissolve will not be turned into a demurrer. If complaint fails to state a cause of action, because facts pleaded are defectively stated, and it appears from complaint that a cause can be stated by amendment under the ordinary rules governing amendments, then on the hearing of the motion to dissolve, the amendment will be considered as having been made. If, however, complaint states no cause of action, then a motion to dissolve the attachment, on the ground that complaint fails to state facts sufficient to constitute a cause of action, will be considered and sustained. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821 (1908).

An affidavit alleging two or more distinct grounds of attachment in the alternative is insufficient, because it is impossible to determine which ground is relied on to sustain the attachment. Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510 (1919).

Action for damages for trespass to personal property of plaintiff, namely ousting plaintiff from possession and control of his truck and contents was not an action for wrongful attachment under§ 8-503 nor a case in which plaintiff was entitled to appear in the probate court and move for dissolution pursuant to this section, the remedy and rights given by those sections being available only to defendant in the case in which attachment is issued. Jaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).

Objection that writ is levied on separate property of wife could not be raised on motion to quash under this section. Objection that writ is levied on property in which defendant has no interest may be raised by the owner by petition in intervention setting forth facts sufficient to entitle intervenor to judgment, after a trial of the issues, removing cloud on her title. First Trust & Sav. Bank v. Randall, 57 Idaho 126, 63 P.2d 157 (1936).

Right Not Waived.

Even after the attached property has been redelivered to defendant upon bond, motion for discharge of attachment for irregularity will lie. Glidden v. Whittier, 46 F. 437 (C.C.D. Idaho 1891).

The release of attached property by defendant by the execution of a proper undertaking is not a waiver of defects in the original proceeding, and defendant may move for a discharge of the writ of attachment on the ground that same was irregularly or improperly issued, after the release of his property. Murphy v. Montandon, 3 Idaho 325, 29 P. 851 (1892).

Right Waived.

One against whom action is instituted and whose property is attached can not sit supinely by and, after judgment is entered, have attachment vacated merely because of falsity of affidavit. Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

Where appellants did not move to vacate or set aside the attachments, which they had the right to do if they felt the attachments were illegal, they were estopped after judgment was entered to seek damages for the attachments issued. Nalder v. Crest Corp., 93 Idaho 744, 472 P.2d 310 (1970).

Valid When Issued.

Where attachment was valid when issued, fact that ultimate judgment exceeded jurisdiction of court did not render attachment invalid or wrongful. Nalder v. Crest Corp., 93 Idaho 744, 472 P.2d 310 (1970).

Am. Jur. 2d.

C.J.S.

Motion Without Affidavits.

Where the motion is not made on affidavits, the district judge is prohibited by this section from considering plaintiff’s affidavit in opposition to the motion. Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510 (1919).

Am. Jur. 2d.

C.J.S.

Amended Affidavit.

Where an amended affidavit for attachment showed that the original affidavit on which the attachment was issued was false in representing that the payment of the debt sued on had not been secured by mortgage, in absence of a showing that the false statement in the original affidavit was made innocently, the trial judge was not bound to accept as true the amended affidavit stating that the security which had been given had become valueless. Casebeer v. Todd, 62 Idaho 702, 115 P.2d 746 (1941).

Construction in General.

Prior to the amendment of this section in 1921, the affidavit for attachment could not be amended. Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510 (1919).

Under statute providing for amendment, defective statement of ground for attachment is generally held amendable. Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090 (1929).

Right Waived.

One against whom action is instituted and whose property is attached can not sit supinely by and, after judgment is entered, have attachment vacated merely because of falsity of affidavit. Mitchell v. Ada Inv. Co., 42 Idaho 421, 246 P. 10 (1926).

Where appellants did not move to vacate or set aside the attachments, which they had the right to do if they felt the attachments were illegal, they were estopped after judgment was entered to seek damages for the attachments issued. Nalder v. Crest Corp., 93 Idaho 744, 472 P.2d 310 (1970).

Timeliness.

RESEARCH REFERENCES

Trial court correctly denied appellants’ motion to strike respondent’s amended affidavit for attachment, made by its treasurer on its behalf and in affirmative terms, not upon information and belief; no hearing having been held on appellants’ amended motion to dissolve attachment when the amended affidavit was filed, it was sufficient and timely. Salt Lake Hdwe. Co. v. Steffler, 87 Idaho 383, 393 P.2d 607 (1964). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

Cross References.

Completion and return of process after expiration of term of office,§ 31-2225.

Penalty for failure to return,§ 31-2205.

Sheriff’s return is prima facie evidence of facts,§ 31-2204.

Application in General.

After sheriff has filed return on garnishment proceedings he can not lawfully release property from garnishment. Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102 (1926), overruled on other grounds, Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

After sheriff has filed return on attachment, property is in custodia legis and any relief must be had by application to court, or express consent of plaintiff. Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102 (1926), overruled on other grounds, Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

Am. Jur. 2d.

C.J.S.

Equitable Right.

A vendor’s lien is not a specific and absolute charge on the realty but a mere equitable right to resort to it, i.e., the property on failure of payment by the vendee; thus, even if a judgment debtor did possess a vendor’s lien in certain property he sold, he possessed no interest in the property which could be levied upon pursuant to this section by the judgment creditor. Estates of Somers v. Clearwater Power Co., 107 Idaho 29, 684 P.2d 1006 (1984).

Expiration of Writ.

Where original writ of attachment had expired, the judgment creditor was still entitled to enforce his judgment by a writ of execution within five years of the date of judgment pursuant to§ 11-101. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Effective Dates.

Section 14 of S.L. 1974, ch. 307 declared an emergency. Approved April 5, 1974.

Cross References.

Banks, powers of director of department of finance upon taking possession of closed bank,§ 26-1020.

Divorce, receivership as security for alimony,§ 32-707.

Powers of receivers,§ 8-605. Reimbursement for premiums on bonds,§ 41-2606.

Release of surety,§ 41-2609.

Allegations Required.

Appointment of receivers to take charge of real property should never be made until the moving party shows himself clearly entitled thereto; the court should not take charge of real estate through the aid of a receiver as against a party in possession asserting title in himself unless the property is shown to be in imminent danger of great waste or irreparable injury. Kelly v. Steele, 9 Idaho 141, 72 P. 887 (1903).

Where the ground alleged for the appointment of a receiver of a corporation is “imminent danger of insolvency,” facts must be alleged sufficient to show such imminent danger. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908).

Probable insufficiency of mortgaged property to discharge the mortgage debt so as to authorize appointment of a receiver in a foreclosure action must be shown by affidavit. Northwestern & Pac. Hypotheekbank v. Dalton, 44 Idaho 120, 256 P. 93 (1927).

Where nonperformance of conditions and insufficiency of property to discharge mortgage debt appears from allegations of complaint, ground for appointment of receiver is shown. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928); Vaught v. District Court, 46 Idaho 642, 269 P. 595 (1928).

Allowances to Receiver.

A receiver is not entitled to allowances for fees paid attorneys for making his reports, narrating his acts, receipts, and expenditures as receiver and prosecuting claims for his own compensation against the estate he represents. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905).

Where a receiver has failed to keep correct accounts of the business and transactions of the receivership estate and has failed to take vouchers for numerous and large expenditures, and has made large overcharges and false charges for sums claimed to have been expended by him, and has been generally reckless in his expenditures in connection with the trust and in the employment of servants, and has shown general disregard for the trust he has assumed, a court of equity will refuse to allow him any salary or compensation for services as receiver. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905).

Appeal.

Order appointing receiver is not appealable order. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928).

Where court had jurisdiction of parties and subject-matter of action, appointment of receiver will not be questioned on writ of review. Beus v. Terrell, 46 Idaho 635, 269 P. 593 (1928).

Appointment Authorized.

Intervention by mortgagee in creditors’ suit where receiver has already been appointed and prayer that income of an insolvent public service corporation be impounded is authorized under this section. Westinghouse Elec. & Mfg. Co. v. Idaho Ry., Light & Power Co., 228 F. 972 (D. Idaho 1915).

Where a party has property in his possession and under his control which he allows to depreciate in value or wrongfully disposes of, in which another party has an interest, it is proper for court to appoint a receiver. Jones v. Quayle, 3 Idaho 640, 32 P. 1134 (1893).

Where the stockholders of a corporation make application for its dissolution and it appears that the corporation is insolvent or in imminent danger of insolvency, the appointment of a receiver is proper. Security Sav. & Trust Co. v. Piper, 4 Idaho 463, 40 P. 144 (1895).

Where property of a corporation has suffered depreciation by fire and corporation is not in active operation and its capital stock is equally divided between contending factions, and its assets consist principally of cash, it is proper to appoint a receiver under subdivision 6 of this section, although none of the contingencies mentioned in subdivision 5 of this section have arisen. Gibbs v. Morgan, 9 Idaho 100, 72 P. 733 (1903).

A receiver should be appointed on application of a stockholder of a corporation where it is shown that the directors and officers of the corporation are mismanaging its affairs for their personal advantage and gain; that the profits of the corporation’s business are being absorbed by such mismanagement in paying the salaries of favorite employees whose services are unnecessary; and that the corporation is so grossly mismanaged that such mismanagement, if continued, would necessarily result in its insolvency. Hall v. Nieukirk, 12 Idaho 33, 85 P. 485 (1906).

This section authorizes the district court to appoint a receiver to receive and take charge of notes, accounts, certificates of the capital stock of corporations, and choses in action, and other personal property, where the necessity and occasion for such appointment is shown. Utah Ass’n of Credit Men v. Budge, 16 Idaho 751, 102 P. 390 (1909), rehearing denied, 16 Idaho 758, 102 P. 691 (1909).

Where a foreign corporation leases its irrigation system to another corporation engaged in the distribution of water for rental and sale and the latter corporation becomes insolvent, the court has jurisdiction to appoint a receiver of the entire property of both corporations pending litigation to determine the interest a purchaser of water may have acquired in such system. Idaho Fruit Land Co. v. Great W. Beet Sugar Co., 17 Idaho 273, 105 P. 562 (1909).

Right to have a receiver appointed is available in an action by a mortgagee for foreclosure where it appears that the property is in danger of being lost, removed, or materially injured, or that condition of the mortgage has not been performed, and the property is probably insufficient to discharge debt. Keane v. Kibble, 28 Idaho 274, 154 P. 972 (1915).

This section confers jurisdiction to appoint receiver in foreclosure of chattel mortgage. Utah Ass’n of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, rehearing denied, 16 Idaho 758, 102 P. 691 (1909). Where terms of a mortgage have been broken and property is insufficient to satisfy mortgage, one who has been subrogated to rents, interests, and profits has prima facie right to appointment of receiver. Vaught v. District Court, 46 Idaho 642, 269 P. 595 (1928).

Allegations of complaint held to authorize appointment of receiver for corporation. Eldridge v. Payette-Boise Water Users’ Ass’n, 49 Idaho 36, 285 P. 1039 (1930).

It was not an abuse of discretion to appoint an ancillary receiver, where judgment creditor was satisfying a New York judgment and showed a need for assistance in identifying debtor’s assets in Idaho. Wechsler v. Wechsler, 162 Idaho 900, 407 P.3d 214 (2017).

Appointment Not Authorized.

Where mortgage requires mortgagor to keep property insured but provides that in case he fails to do so, mortgagee may insure and have an additional lien on the property for the amount paid for insurance, failure of mortgagor to insure is not such waste as to authorize appointment of a receiver. Eureka Mining, Smelting & Power Co. v. Lewiston Nav. Co., 12 Idaho 472, 86 P. 49 (1906).

The fact that a mortgaged boat is being used to ply waters without the state is not grounds for the appointment of a receiver on the application of mortgagee, where the mortgage merely stipulates that the boat is not to be taken without the limits “of the United States” and it does not appear that it is being so taken, or that the waters in which it is used are any more dangerous than those within the state. Eureka Mining, Smelting & Power Co. v. Lewiston Nav. Co., 12 Idaho 472, 86 P. 49 (1906).

Collateral Attack.

Appointment of receiver can not be attacked collaterally unless it is shown that order of appointment was void. Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922).

Effect of Appointment.

The appointment of a receiver does not necessarily cause the dissolution of a corporation unless the court so directs; the receiver may be appointed simply to manage the affairs of the company during the pendency of the litigation. Hall v. Nieukirk, 12 Idaho 33, 85 P. 485 (1906).

Except so far as the control of the affairs of a domestic or foreign corporation is placed in the hands of the receiver, its officers and directors, except when enjoined by the court appointing the receiver, continue to exercise their functions as if no receiver had been appointed. Rowe v. Stevens, 25 Idaho 237, 137 P. 159 (1913).

When receiver is appointed to take care of property subject of mortgage foreclosure, such property is chargeable with expense incurred in its preservation and care. Colorado Nat’l Bank v. Meadow Creek Livestock Co., 36 Idaho 509, 211 P. 1076 (1922).

Foreclosure Suit.

The appointment of a receiver in a mortgage foreclosure where the conditions of the mortgage have not been performed and the security is probably insufficient to discharge the debt is justified where the evidence shows insufficiency of security and that the property was being neglected. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936).

Jurisdiction to Appoint.

An action is not pending in such sense as to authorize the appointment of a receiver until complaint has been placed in the hands of the clerk or in his office for the purpose of receiving the filing mark. Gold Hunter Mining & Smelting Co. v. Holleman, 3 Idaho 99, 27 P. 413 (1891).

District courts have no jurisdiction to appoint receivers in all actions which may be pending before them, but only in the classes of cases mentioned in this section, and then, when prior to judgment, it is made to appear that such an appointment is necessary in order to protect the rights of the parties. Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85 (1899).

A plaintiff is not entitled to the appointment of a receiver where the defendant fully meets and denies the equities of his bill by a sworn answer, unless he overcomes the denials in the answer by further proof in support of his bill. Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85 (1899).

This section must be construed with§§ 11-504 to 11-507 relative to proceedings supplementary to execution and does not authorize the judge before whom supplementary proceedings are pending to determine the interests of a garnishee in such proceedings and appoint a receiver to take charge of the property garnished. Spaulding v. Coeur d’Alene Ry. & Nav. Co., 6 Idaho 638, 59 P. 426 (1899).

Courts of equity have the power and authority to appoint receivers of property and to direct them to care for, protect, and preserve the property and to decree the charges and expenses therefor as prior and preferred liens to that of all other liens, mortgages, or incumbrances, and to direct the property sold for the payment of the same. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905); Hewitt v. Great W. Beet Sugar Co., 20 Idaho 235, 118 P. 296 (1911); Commercial Trust Co. v. Idaho Brick Co., 25 Idaho 755, 139 P. 1004 (1913).

Where all the parties interested in property and having control over it are personally present in court, the court may appoint a receiver to take charge of the property (in proper case), although the property is outside of the jurisdiction of the state. Eureka Mining, Smelting & Power Co. v. Lewiston Nav. Co., 12 Idaho 472, 86 P. 49 (1906).

A receiver can not be appointed until an action is pending or has passed to judgment. Elmore County Irrigation Farms Ass’n v. Stockslager, 22 Idaho 420, 126 P. 616 (1912).

There are no provisions in the statutes which limit the jurisdiction of the court in appointing trustees and receivers of a foreign corporation which owns valuable property in the state and is making contracts and carrying on business, where such corporation becomes insolvent and has creditors and is unable to pay its debts; such corporation can be sued in the courts of the state, and the courts acquire jurisdiction of such corporation by reason of the fact that such corporation has appointed an agent and a principal place of business in the state, and the judge of the district court has power to make such appointment. Rowe v. Stevens, 25 Idaho 237, 137 P. 159 (1913).

In addition to the grounds specified in this section, a receiver may be appointed in all other cases where receivers have been appointed by the usages of courts of equity. Riley v. Callahan Mining Co., 28 Idaho 525, 155 P. 665 (1916).

District court has power to appoint receiver for insolvent corporation and power to decide whether facts exist warranting such appointment. Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922); Eldridge v. Payette-Boise Water Users’ Ass’n, 49 Idaho 36, 285 P. 1039 (1930).

Appeal by party who has been directed to execute certain conveyances in carrying out judgment of court and has neglected to do so does not stay proceedings in trial court so as to prevent appointment of receiver. Bedal v. Johnson, 37 Idaho 359, 218 P. 641 (1923).

Supreme Court has authority to appoint receiver in exercise of its appellate jurisdiction. Riggen v. Perkins, 40 Idaho 486, 234 P. 161 (1925). Applications for appointment of receiver should be made first to lower court or reasons given which render it indispensable that they should be made in Supreme Court. Riggen v. Perkins, 40 Idaho 486, 234 P. 161 (1925).

Powers of Receivers.

A receiver is an officer of the court, under its protection, and property in his hands is in custodia legis ; therefore, no one can sue him concerning such property without leave of the court which appointed him. Martin v. Atchison, 2 Idaho 624, 33 P. 47 (1890).

A receiver in charge of the property of a corporation has no authority to carry on the business of the corporation unless he be so authorized and directed by the court. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905).

A court of equity has no authority to direct its receiver in charge of placer mines to carry on a general mining business, and charge the expenses of the business and operations as a prior and preferred lien against the property over that of prior recorded mortgages and incumbrances on the same property. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905).

Trustees.

The office of trustee appointed for the purpose of preserving community property and the income and proceeds thereof in order to make it available for the support and education of the children where both parents were found unfit for custody and financially irresponsible was comparable to that of a receiver. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

Lack of appointment of a receiver does not relieve statutory trustees of their fiduciary obligations. Northwest Roofers & Employers Health & Sec. Trust Fund v. Bullis, 114 Idaho 56, 753 P.2d 267 (Ct. App. 1988).

Am. Jur. 2d.

C.J.S.

ALR.

What constitutes waste justifying appointment of receiver of mortgaged property. 55 A.L.R.3d 1041.

Lien for towing or storage, ordered by public officer, of motor vehicle. 85 A.L.R.3d 199.

Requirements.

Although this section is specific to the appointment of a receiver in cases involving defaults under a deed of trust, it nonetheless requires the court to consider whether certain factors are present. Those factors —the danger of substantial waste and the insufficient value of the property to discharge the debt — are similar to factors considered under federal law. Canada Life Assur. Co. v. Lapeter, 563 F.3d 837 (9th Cir. 2009).

Cross References.

Dissolution of nonprofit corporations,§ 30-3-110 et seq.

Distribution of Assets.

Distribution of portion of assets in specie among certain of the stockholders, without any finding as to value of same, and decree of sale of balance of property and distribution of proceeds upon basis of a copartnership held erroneous. Clow v. Redman, 6 Idaho 568, 57 P. 437 (1899).

Am. Jur. 2d.

§ 8-603. Who may be appointed — Undertaking upon ex parte appointment — Additional undertaking.

No party, or attorney, or person interested in an action, can be appointed receiver therein, without the written consent of the parties filed with the clerk. If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking.

History.

C.C.P. 1881, § 343; R.S., R.C., & C.L., § 4331; C.S., § 6819; I.C.A.,§ 6-603.

Cross References.

Justification of sureties,§ 12-614; Idaho R. Civ. P. 66(a).

State, county or city need not give bond,§ 12-615.

Statutory form of undertaking,§ 12-613.

Appointment of Person Inadvertently Made Party.

This section is not intended to prevent the appointment of a person inadvertently made a party to foreclosure proceedings, where no relief is sought against him, and where, upon the application for his appointment, the court dismisses him as a party. Reed v. Hartsock, 38 Idaho 771, 225 P. 139 (1924).

Basis of Appointment.

Discretion of Court in Requiring Bond.

A receiver cannot be appointed merely on the basis of a contract provision since statutory requirements for appointment for a receiver must exist before a court has jurisdiction to make appointment. Huggins v. Green Top Dairy Farms, Inc., 75 Idaho 436, 273 P.2d 399 (1954). Discretion of Court in Requiring Bond.

It is within the discretion of court to require an undertaking before a receiver is appointed, and the court may require, at its discretion, an undertaking at any time after the appointment. Lee v. Stevens, 22 Idaho 670, 127 P. 680 (1912).

Ex Parte Appointment.

This section recognizes the right of a judge to appoint a receiver upon ex parte application. Murphy v. McCarty, 69 Idaho 193, 204 P.2d 1014 (1949).

Wrongful Appointment.

Where defendant tendered amount sufficient to pay alleged delinquent installments on purchase contract but plaintiffs refused to accept same and had a receiver appointed the same day for defendant, the appointment was wrongful. Huggins v. Green Top Dairy Farms, Inc., 75 Idaho 436, 273 P.2d 399 (1954).

Defendant is entitled to damages sustained as result of wrongful appointment of receiver. Huggins v. Green Top Dairy Farms, Inc., 75 Idaho 436, 273 P.2d 399 (1954).

Where trial court appointed a receiver for defendant dairy in ex parte proceeding based on allegation that defendant was delinquent on installments under defendant and without requiring plaintiffs to post an undertaking to indemnify contract of purchase without notice to defendant should appointment of receiver be wrongful, the appointment was improvident, without cause, and an abuse of discretion. Huggins v. Green Top Dairy Farms, Inc., 75 Idaho 436, 273 P.2d 399 (1954).

Am. Jur. 2d.

C.J.S.

Cross References.

Allowance to receiver of premium paid for company bond,§ 41-2606.

Am. Jur. 2d.

C.J.S.

Power of Dispersing Agent.

Partner was incorrect when he claimed that the partners never envisioned granting the dispersing agent authority to sell the property where there was no evidence indicating that the partners wished to retain the authority to execute the closing documents or that a paragraph in their mediated compromise agreement meant something other than what it stated, that all partnership real estate was to be sold by the dispersing agent with a qualified real estate broker for not less than fair market value. Lettunich v. Lettunich, 141 Idaho 425, 111 P.3d 110 (2005).

Liability of Receiver.

A receiver is charged with knowledge of the general condition of the insolvent business after he has had charge a sufficient length of time to acquaint himself with its affairs. Brown v. Miller, 22 Idaho 307, 125 P. 981 (1912).

Power of Court.

A receiver is an officer of the court, under its protection, and property in his hands is in custodia legis ; therefore, no one can sue him concerning such property without leave of the court which appointed him. Martin v. Atchison, 2 Idaho 624, 33 P. 47 (1890).

A court of equity has no power to authorize a receiver to incur indebtedness in carrying on a private business, and to make same a first and paramount lien upon corpus of the property, superior to that of prior lienholders, without their consent. Dalliba v. Riggs, 11 Idaho 364, 82 P. 107 (1905); Stevens v. Evening Courier, 31 Idaho 710, 175 P. 964 (1918).

It was not intended that a court or judge should take charge of the property of a private corporation through its receiver and operate it indefinitely for the benefit of its creditors. Cronan v. District Court, 15 Idaho 184, 96 P. 768 (1908).

Receiver’s Sale.

A district judge at chambers has power to order sale of property in the hands of receiver, with instructions to receiver to report sale to court for confirmation. First Nat’l Bank v. C. Bunting & Co., 7 Idaho 387, 63 P. 694 (1900).

A receiver’s sale is a judicial sale and is required to be made upon not less than five nor more than ten days’ notice, as are other judicial sales; a sale by a receiver on an ex parte application at chambers, made upon only three days’ notice posted in only three places in the county is void, and an order confirming the same should be set aside. First Nat’l Bank v. C. Bunting & Co., 7 Idaho 387, 63 P. 694 (1900).

In order to justify setting aside a judicial sale on behalf of one attacking it on the ground of alleged irregularities in the conduct of such sale, person attacking such sale should allege and establish injury to himself resulting from the irregularities complained of. In re Great W. Beet Sugar Co., 22 Idaho 328, 125 P. 799 (1912).

Trustee.

The office of trustee appointed for the purpose of preserving community property and the income and proceeds thereof in order to make it available for the support and education of the children where both parents were found unfit for custody and financially irresponsible was comparable to that of a receiver. Jones v. State, 85 Idaho 135, 376 P.2d 361 (1962).

Am. Jur. 2d.

C.J.S.

Cross References.

Deposit in court in condemnation proceedings,§ 7-715.

Action Under Color of Office.

Where from the statutes, the probate judge could have considered that he had power, and that it was his duty, to protect a ward and purchaser of the ward’s land when guardian was in default in payment of premiums on his bond, and it was necessary to quiet the title to such land before a sale could be completed, the probate judge’s order that the purchase money be paid to the probate judge pending the outcome of the quiet title action was under “color of office,” and a surety on the probate judge’s official bond was liable upon the probate judge’s embezzlement of such funds. Grayson v. Linton, 63 Idaho 695, 125 P.2d 318 (1942).

Money Held by Trustee.

Where it appears from pleadings, and by admission of a trustee, that trustee holds certain moneys in trust, and that he holds such moneys subject to order of court and has no interest or claim in same, an application for deposit of such money into court, made by all parties claiming an interest in same, will be granted. Reid v. Steele, 7 Idaho 571, 64 P. 892 (1901).

Am. Jur. 2d.

C.J.S.

Appealability of order directing payment of money into court. 15 A.L.R.3d 568.

Payment or deposit of award in court as affecting condemnor’s right to appeal. 40 A.L.R.3d 203.

Cross References.

Disposition of unclaimed property held by court,§ 14-508.

Deposit with Judge.

A plaintiff who refused to accept tender and permitted it to be withdrawn was not prejudiced by the order of the court requiring the deposit to be made with the judge rather than with the clerk or failure of the clerk to deposit the money with the county treasurer, as required by this section. Darrar v. Joseph, 91 Idaho 210, 419 P.2d 211 (1966).

Am. Jur. 2d.

C.J.S.

C.J.S.

Am. Jur. 2d.

Amendments.

The 2012 amendment, by ch. 257, deleted “legal guardian” following “parent” in four places.

Effective Dates.

Section 21 of S.L. 1989, ch. 155 provided that the act should take effect January 15, 1990.