Opinion
No. 5312.
July 30, 1929.
APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.
Action to quiet title. Judgment for plaintiff. Affirmed.
John A. Bagley, for Appellants.
The affidavit for attachment is jurisdictional, and must contain all that the statute requires before the plaintiff is entitled to, or the court has jurisdiction to issue, a writ of attachment. ( Murphy v. Montandon, 3 Ida. (Hasb.) 325, 29 Pac. 851; Murphy, Grant Co. v. Zaspel, 11 Idaho 145, 81 P. 301; Heaton v. Panhandle Smelting Co., 32 Idaho 146, 179 P. 510.)
In Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893, the court says: "The simple statement that the security given has become worthless is insufficient without the statement required by the statute (C. S., sec. 6780) that it has become so 'without any act of the plaintiff, or the person to whom the security was given.' " ( Kerns v. McAulay, 8 Idaho 558, 69 Pac. 539.)
C. S., sec. 465, defines what is separate property of the wife, and is as follows: "All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, or that which she shall acquire with the proceeds of her separate money, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired."
This section of the statute has been interpreted in the following Idaho cases which have held that the property was held to be the separate property of the wife: Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775; Baldwin v. McFarland, 26 Idaho 85, 141 P. 76; Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 Pac. 66; Northwestern Hypotheek Bank v. Rauch, 7 Idaho 152, 61 Pac. 516; McKeehan v. Vollmer-Clearwater Co., 30 Idaho 505, Ann. Cas. 1918E, 1197, 166 P. 256; Wilkerson v. Aven, 26 Idaho 559, 144 P. 1105.
Darwin E. Haddock, for Respondent.
Plaintiff having shown by undisputed evidence that the property involved in this case was acquired after the marriage of defendants, George E. Wilcox and Annie Wilcox, a presumption arose that the property was their community property, and the burden was then upon the defendants to overcome this presumption, and the court was justified in holding that they had not done so. ( Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 Pac. 66; Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468; Vermont L. T. Co. v. McGregor, 5 Idaho 510, 51 P. 104.)
The fact that the affidavit for attachment in suit of Bear Lake State Bank against George E. Wilcox omitted the words ("without act of plaintiff ") after alleging that the security had become worthless, or contained other irregularities or omission, while rendering the attachment proceedings subject to motion to dissolve in said suit, or subject to other direct attack, does not render said attachment proceedings and judgment obtained in said suit void and subject to "collateral" attack in the suit at bar. (3 Cal. Jur., sec. 24, p. 429; Scrivener v. Dietz, 68 Cal. 1, 8 P. 609; Patch v. Stewart, 78 Mont. 192, 253 P. 254; Title Ins. Trust Co. v. California Development Co., 171 Cal. 173, 152 P. 542; Bank of Colfax v. Richardson, 34 Or. 518, 75 Am. St. 664, 54 P. 359; Shea v. Johnson, 101 Cal. 455, 35 P. 1023; Harvey v. Foster, 64 Cal. 296, 30 P. 849; Mentzer v. Ellison, 7 Colo. App. 315, 43 P. 464.)
Judgment obtained against a nonresident, jurisdiction being obtained by attachment proceedings, although the judgment is personal in form, is not for that reason void or subject to collateral attack. (3 Cal. Jur., p. 475, sec. 64.)
Plaintiff in this action seeks to quiet title to property which had stood upon the records in the name of the defendant Annie Wilcox and which the plaintiff had purchased at sheriff's sale upon an execution issued in an action wherein the plaintiff had sued and obtained judgment against G.E. Wilcox, the husband of Annie Wilcox. In the former action, the interest of G.E. Wilcox in the property involved had been attached, and service of summons had been personally made upon the defendant G.E. Wilcox in the state of Utah. After the attachment had been levied, G.E. Wilcox and Annie Wilcox mortgaged the property to King and Schulder, to whose interests defendant Samuel A. King has succeeded. By cross-complaint Annie Wilcox seeks to have the title to the property quieted in herself as her separate property, and both she and Mr. King set up in defense to plaintiff's complaint this contention. The court found for the plaintiff upon the issues, and rendered judgment for plaintiff quieting its title, from which the defendants appeal.
Appellants attack the finding that the property was the community property of George E. and Annie Wilcox as not supported by the evidence. The parties had been married many years when the property was acquired in 1911, and Mrs. Wilcox was named as grantee in the deed received when the property was purchased. Mrs. Wilcox and two sons gave testimony tending to show that the property had been paid for in part by the proceeds of cattle acquired by her after marriage, which were the increase, by purchase or otherwise, of a calf which had been purchased with the proceeds of a trunk which belonged to Mrs. Wilcox before her marriage, and in part by earnings of the boys while they were minors and in part by earnings of her own. On the other hand, it appeared that the contract for the purchase of the property named both Mr. and Mrs. Wilcox as purchasers; that neither the contract nor the deed contained any recital indicating that the property was to be the separate property of the wife; and that most of the payments upon the purchase price were made out of money deposited in the bank in the name of the husband; and of course the presumption existed that the property belonged to the community. We think the finding of the trial court should not be disturbed on this question.
Appellants attack the attachment in the former action upon the ground that the affidavit for attachment, which recited that the note on which the action was brought was secured by the pledge of certain property, but that said security had become worthless, did not show that it had become worthless without any act of the plaintiff. The affidavit was insufficient in this respect. ( Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893; C. S., sec. 6780.) We think, however, that if this defect were amendable, it was not a jurisdictional defect which would defeat the judgment based thereon. ( Mentzer v. Ellison, 7 Colo. App. 315, 43 P. 464.) Prior to the amendment of C. S., sec. 6814, by chapter 160 of 1921 Session Laws, it had been held that similar defects were fatal to the attachment ( Murphy v. Montandon, 3 Ida. (Hasb.) 325, 35 Am. St. 279, 29 P. 851; Kerns v. McAulay, 8 Idaho 558, 69 P. 539; Heaton v. Panhandle Smelting Co., Ltd., 32 Idaho 146, 179 Pac. 510), and that the affidavit was not amendable ( Heaton v. Panhandle Smelting Co., Ltd., supra). Under statutes providing for amendment, defective statement of ground for attachment is generally held amendable. ( American Surety Co. v. Kartowitz, 59 Mont. 1, 195 P. 99; Patch v. Stewart, 78 Mont. 192, 253 P. 254; Hamburger v. Halperm, 28 Cal.App. 317, 152 P. 61.) It further appears from the affidavit for personal service of the summons outside the state in the former action that the defendant was a nonresident, and if that fact had been alleged in the affidavit for attachment, it would not have been necessary to state any other ground for the attachment ( Kerns v. McAulay, supra); and in Hamburger v. Halperm, supra, it was held that failure to allege nonresidence in an affidavit for attachment was an amendable defect. We think that in the present case the affidavit, in failing to sufficiently state the ground for attachment as to the absence of security for the debt, was merely irregular and not void, and that it gave the court jurisdiction to enter judgment against the defendant to the extent of the property attached. That the judgment was personal in form, was not fatal to the judgment. ( Kerns v. McAulay, supra.)
It is further objected that the evidence fails to show that the service upon Wilcox outside the state was supported by a proper affidavit and order. The judgment-roll in the former action was introduced in evidence, and bound up with the judgment-roll are a sufficient affidavit and order for personal service of the summons outside of the state. The whole bundle of papers was marked as an exhibit and introduced in evidence without objection upon that ground, and although the affidavit and order were not properly a part of the judgment-roll (C. S., sec. 6901; Harpold v. Doyle, 16 Idaho 671, 102 P. 158), these documents, being physically introduced in evidence, were proper to be considered by the court in support of the prior judgment.
The judgment is affirmed, with costs to respondents.
Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.
Budge, C.J., disqualified.
Petition for rehearing denied.