Northern Montana Ass'n of Credit Men v. Hauge , 111 Mont. 56 ( 1940 )

I dissent to the extent that I do not think that either the statutes or any established rule of law justifies this court in holding that a writ of attachment may be legally levied upon a debtor's property so that the levy will antedate the creditor's ownership of the debt to secure which the levy is made.

All of the cases cited by the contending parties in this action relate to the amendment of pleadings in actions where the application for amendment to the pleadings was made by the party or parties who began the action. I have found no case in any jurisdiction where an amendment has been allowed to the undertaking on attachment or of the writ of attachment where there was a change of ownership in the obligation sued upon. In my judgment when the case at bar was abandoned as an action brought by the trustee for the owners of the various accounts and was purchased by the plaintiff, it became a new action. I think that under the provisions of section 9284, Revised Codes, the writ of attachment was improperly and irregularly issued and should have been discharged when the ownership of the accounts sued upon passed into new hands.

I am further of the opinion that the undertaking required in an attachment action is of no value when the ownership of the accounts is changed, and that the undertaking furnished could be voided by the sureties. The rule laid down in 7 C.J.S., Attachment, section 143, I think is applicable here. It is there said, at pages 318 and 319, that a proposed change in the affidavit would have the effect of introducing into the cause a new plaintiff for the ones who originally instituted the action and proceeding and is of a material character, and, in the absence of statutory permission, is not allowable. Under my construction of our statute on attachments, I do not think the change made here was allowable.

In the case of C.H. Fargo Co. v. Cutshaw,12 Ind. App. 392, 39 N.E. 532, it was held that attachment proceedings commenced by several persons as co-partners could not be amended by substituting a corporation as plaintiff, although the new corporation plaintiff be composed exclusively of the original plaintiffs. And in the case of Glover Son Commission Co. v.Abilene Milling Co., 136 Mo. App. 365, 116 S.W. 1112, it was held that an interpleader in an attachment action must recover on the strength of his own title without depending upon the title of the plaintiff.

While some of these authorities are not directly in point, the reasoning in the cases clearly upholds the view expressed in the first paragraph of this dissent. The case of Jenkins v. FirstNational Bank, 73 Mont. 110, 236 P. 1085, and the case ofHetrick v. Renwald, 73 Mont. 426, 236 P. 1089, both treat of cases where some of the questions involved in the case at bar were involved. But in both of those cases there was no change of ownership when the question of amendment arose and there could be no controversy over the question as to whether the amendment gave rise to a new action.

Rehearing denied September 24, 1940.