Howard v. Grimes Pass Placer Mining Co. , 21 Idaho 12 ( 1911 )

STEWART, C. J.,

Coneurring. — I concur in the conclusion of the majority opinion in holding that the trial court was in error in refusing to set aside the sale made by the sheriff of Boise county upon an execution issued in this case on a judgment obtained in the district court.

The language used in sec. 4304, as quoted in the majority opinion, in my judgment is plain and explicit and needs no explanation, and means that any creditor of a defendant who within sixty days after the first posting and publication of the notice of attachment shall commence and prosecute to final judgment an action for his claim against the defendant, by so doing shall share pro rata with the attaching creditor in the proceeds. But while I thus concur in this opinion, I do not hold that by a creditor commencing an action and prosecuting it to final judgment within sixty days after the first posting and publication of notice of attachment, that such creditor shall have any right whatever to pro-rate with the attaching creditor in the proceeds of the property attached, or that said statute in any way confers any right whatever to a subsequent attaching creditor to pro-rate in the proceeds of property attached, whether the suit be begun and prosecuted to final judgment within sixty days after the notice of the attachment is issued or after such time.

Petition for rehearing denied.