Blumaur-Frank Drug Co. v. Branstetter , 4 Idaho 557 ( 1895 )

ON REHEARING.

MOBGAN, C. J.

The principal contention of the respondent, in his brief, was that the affidavit and notice, under the statute,is not process;and therefore the opinion deals principally with this contention. The statement that “no objection is made to the form of the process” was intended to apply to the form, simply, and not to the description of the property therein, which followed the description in the mortgage. The description is sufficient, as between the parties to the mortgage. The respondent in this ease did not avail himself of the means pointed out by the statute to contest the validity or sufficiency of the description, either in the mortgage or affidavit; and therefore, having taken no legal means to contest the same, such sufficiency was not before the court. And the court does not hold that such description is sufficient. The respondent repeats his argument as to insufficiency of description, and again quotes McConnell v. Langdon, 3 Idaho, 157, 28 Pac. 403. The court explained its position with respect to this, fully, in the original opinion, and does not think it necessary to repeat what was then said. Howard v. Clark, 43 Mo. 344, cited by respondent, states that the statute of Missouri provides a mode of settling all questions of priority between attaching creditors, and where the officer neglects these provisions, and decides the questions himself, he does so at his own peril. The case is not in point, as the sheriff in that case levied both attachments upon the same property on the same day, and thereby put himself in the position where he must decide as to priority. That is not this case. The priority in this case was with the mortgagee, as his levy was made first. He was as much a creditor as the attaching crediitor, and the sheriff was not obliged to resort to section 4110— commence suit, advance costs and employ counsel to determine a matter in which he had no interest. In this case the respondent was the party who wished .to secure and enforce his lien upon a portion of the goods in this store, upon which it was claimed the mortgage was not a lien. It was for the respondent to make such claim good, by such legal means as the statute provided. The respondent had the means at his disposal to compel a decision as to the validity of the mortgage, and also to compel the mortgagee to point out the goods upon which his mortgage was a valid lien. Having neglected to employ the means so provided, he could not, by verbal request or order, compel or require the sheriff to do this for him. Trowbridge v. Cushman, 24 Pick. 310, and Bank v. Mitchell, 58 Cal. 42, are neither of them in point, as there the question was whether an execution against an individual could take priority over an execution .against a firm, or two joint makers of a note, when levied upon the firm or joint property. Not so in this case. We are quite surprised at the statement in the petition for rehearing “that, by an agreement between the mortgagor and mortgagee which the law declares void, a confusion of goods had occurred." We find no agreement in the mortgage or elsewhere, cn the part of the mortgagee, that new goods might be purchased with the money received on sales, and such goods mingled •with the others. The reasoning, therefore, founded upon such ■false premises, and the authorities quoted in support thereof, must fail of reaching the case. There can be no question of the right of the plaintiff to attack the validity of the mortgage, under section 3396 of the Revised Statutes of Idaho. Rehearing Is denied.

.Sullivan and Huston, JJ., concur.