National Bank v. First National Bank , 71 Mont. 242 ( 1924 )

MR. JUSTICE COOPER

delivered the opinion of the court.

The plaintiff commenced this action in the county of Lewis and Clark upon a promissory note in the sum of $11,674, signed “The First National Bank, Poplar, Montana, Otto Ramstad, Cashier.”

The allegations of the amended complaint are that plaintiff and defendant are both national banking corporations, doing business under the banking laws of the United States, and that the note was executed and delivered by defendant to the plaintiff. On the day the original complaint was filed there was also filed an affidavit for attachment, sworn to by the vice-president, of the plaintiff bank, and a writ of attachment, which commanded the sheriff of Roosevelt county to attach and safely keep enough of the defendant’s property within that county to satisfy plaintiff’s demand. The return of the sheriff recites that he received the writ on December 18, 1922, and personally served it by delivering a copy thereof to J. C. Dwyer, the county clerk of Roosevelt county, and levying upon and attaching the real property described therein.

The defendant appeared by answer, and, after the plaintiff had filed its reply thereto, it moved the court to discharge the attachment and to set aside and annul the levy, upon the ground that the attachment was irregularly and improperly issued, in that, under the provisions of section 9834 of the United States Compiled Statutes of 1916, no attachment could issue from a state court before judgment, against a national bank or its property, and that the levy was void.

Thereafter, before defendant’s motion was decided, plaintiff’s counsel filed in the office of the clerk of the district court a paper designated “Release of Attachment,” which directed the clerk to make such entries upon the record of the court as would “disclose that such release was made” as of August 16, 1923. On August 14 counsel for plaintiff transmitted to the sheriff of Roosevelt county an “order to release” the attachment upon the property of the defendant. On September 28, 1923, there was filed in the office of the clerk of the court a communication, dated August 14, 1923, addressed to O. A. Spaulding, plaintiff’s attorney, at Helena,' Montana, by the county clerk of Roosevelt county, which reads:

“In the case of National Bank of Montana v. First National Bank of Poplar of an attachment, a release of said attachment has been filed and put on record in this office on the 11th day of September, 1923. I am sending notice of the release to you upon the recommendation of the sheriff’s office.

“Tours respectfully,

“W. J. Hardie, C. & R.”

October 22 the district court sustained defendant’s motion to discharge the attachment and set aside the levy on the defendant’s property. From this order plaintiff appeals.

Counsel for plaintiff concedes that the attachment was issued in contravention of the federal statute forbidding the attachment of the property of national banks under process from the state courts before final judgment. But he insists that a discharge of the attachment was completely effected hy its voluntary release, and that nothing was left upon which a judicial order could operate. To sustain his position numerous decisions are referred to. But they are not at all in point upon the question presented in the instant case, and therefore we shall not occupy space in discussing them.

Webster defines the word, “discharge,” as follows: “To set aside, annul, dismiss.” Release: “To let loose, to set at liberty, to let go.” The release by the sheriff is a ministerial act. The discharge of the attachment is the result of ■action by the court. The party instigating the attachment proceedings may give the sheriff directions to release the levy.

Section 9282, Revised Codes of 1921, reads: “The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to a judge thereof; that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued.”

Section 9284 provides that the writ of attachment may be discharged when it appears to the court to have been improperly or irregularly issued.

An attachment of real estate in the manner prescribed by law creates a lien upon the estate. Attachment statutes are for the benefit of creditors. The lien may be released by the party originating it.

But the defendant here availed himself of the right given by section 9282 and interposed a motion to discharge the attachment. Plaintiff’s direction to release the levy was tantamount to an admission that defendant’s motion to discharge the writ was well taken.

Upon all the conditions it was the duty of the court to rule upon defendant’s motion. In sustaining it no error was committed.

The order appealed from is affirmed.

Mr. Chief Justice Callaway and Mr. Justice Stark: We concur in the foregoing; also in the observations of Mr. Justice Holloway.