Johnson v. Emery , 31 Utah 126 ( 1906 )

McCARTY, J.,

after stating the facts, delivered the opin- ■ ion of the court.

Appellant’s first contention is that the court erred in admitting in evidence, over plaintiff’s objection, the attachment proceedings. It is claimed that “the affidavits in each of the cases were defective and void for the reason that they each stated two grounds of attachment in the alternative.” In the case of Ambrose v. Norris the grounds alleged in the affidavit for the writ of attachment are as follows: “That the said defendant has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property with intent to defraud his creditors.” With the exception of a slight change in the phraseology, the allegations of the grounds for attachment in the affidavits of the other two cases mentioned in the foregoing statement of facts are substantially the same as the grounds alleged in the Ambrose Case.

Section 3064, Rev. St. 1898, specifies five separate and distinct grounds of attachment. Subdivision 3 of said section is as follows:

“Has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, any of his property with intent to defraud his creditors.”

Section 3066 provides:

“The clerk of the court shall issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, which shall be filed, setting forth,” among other things, that the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant, “and also specifying one or more of the causes set forth in section three thousand and sixty-four as the ground of attachment.”

Tbe cause alleged in tbe affidavit under consideration for wits of attachment was that J. ft. Norris bad disposed of or was about to dispose of bis property with intent to defraud bis creditors. While there are several different phases of this ground set.forth in subdivision 3 of section 3064, 'the essence of which is the fraudulent disposition of property, we are of the opinion that they constitute but one cause or ground for an attachment, and that the entire subdivision may be stated in an affidavit for a writ of attachment. It may often happen that the party making the affidavit may know that the defendant has disposed of, or is about to dispose of, his property by one or more of the ways mentioned in section 3064, but may be in doubt, or unable to state, as to the-specific manner in which he has or is about to place his property beyond the reach of his creditors. It is therefore apparent that the construction contended for by appellant, if adopted and followed, would, in many cases, defeat the very object and. purpose of the statute. While there is some conflict in the authorities as to whether a statement of this ground made substantially in the language of the statute is sufficient to authorize the issuance of a writ of attachment, we think the weight of authority holds that it- is sufficient. This court in effect so held in the case of Bank v. Little, Roundy & Co., 13 Utah 265, 44 Pac. 930. In the case of Dawley v. Sherwin, 59 N. W. 1027, the Supreme Court of South Dakota, in considering a statute of that state, exactly like the one under consideration, said:

“It will be observed in this case that the causes or grounds for an attachment are stated in the language of subdivision 5 of section 4995 (Comp. Laws 1888) and the first subdivision of section 5014, and we are disposed to believe that each group or subdivision constitutes but one cause or ground for an attachment, and that the entire subdivision may thus be stated in an affidavit for a warrant of attachment.”

So, in the case of Klenk v. Schwalm, 19 Wis. 113, it is said:

“It is impossible, frequently, for a creditor to ascertain whether a debtor has actually consummated a fraudulent transfer of his property, or whether he is about to do so; and therefore the Legislature have made these one ground for an attachment. Fraudulent sales are generally secret; and it may he very difficult to say, at a given moment, whether they are fully accomplished or not. Hence a party is permitted to state his ease in the alternative — that the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, with intent to defraud his creditors. And when regard is had to the manner in which the Legislature has enumerated the different cases in which attachments may issue, there can be no doubt that the second subdivision of section 2 (Eev. St. Wis. 1858, c. 130) was considered as constituting in fact one ground or cause of attachment.”

In Parsons v. Stockbridge, 42 Ind. 121, the court says:

“The ground of the motion to dismiss the attachment was the insufficiency of the affidavit in stating the cause for the attachment. * - * The objection to it is that it is in the alternative. The objection is not well taken. Where the disjunctive ‘or’ is used not to connect two distinct facts or different natures, hut to characterize and include two or more phases of the same fact, attended with the same results, the construction contended for is not applicable.”

In Tessier v. Englehart, 18 Neb. 167, 24 N. W. 734, the Supreme Court of Nebraska, in construing a similar statute, said:

“Here are nine distinct grounds or causes upon either of which an order of attachment may issue. Some of them embrace but one allegation, while others, and most of them, are compound in their character; but whether single or compound, each one contains but a single cause of action, and it cannot be urged as an objection to an affidavit or pleading under this section that it contains disjunctive language, as long as it contains but one of said' grounds or causes of action, and substantially follows the language of the statute.”

Mr. Drake in his work on Attachment, section 102, says:

“Let it be observed, however, that where the disjunctive ‘or’ is used not to connect two distinct facts of different nature, but to characterize and include two or more phases of the same fact, attended with the same results, the construction just mentioned (section 101a, referring to distinct statutory grounds) would be inapplicable.” This same doctrine is declared by the following authorities: Russell v. Ralph, 53 Wis. 328, 10 N. W. 518; McCraw v. Welch, 2 Colo. 284; Conrad v. McGee, 9 Yerg. (Tenn.) 428; Societe Fonciere v. Milliken, 135 U. S. 304, 10 Sup Ct. 823, 34 L. Ed. 208; Irvin v. Howard, 37 Ga. 18; Cannon v. Logan, 5 Port. (Ala.) 77; Wood v. Wells, 2 Bush. (Ky.) 197; 4 Cyc. 504; 3 Enc. Pl. & Pr. 24, 25; 1 Shinn on Attach, and Garnishment, 145, 146.

Appellant’s next complaint is tbat the court erred in directing the jury to return a verdict for the defendant. A part of the goods levied upon was property which appellant purchased from Norris, the judgment debtor in the suit in which the writ of attachment and writs of execution were issued. At the time of the sale from Norris to appellant all of the goods were in the possession of Norris, and he continued in such possession for about four months -thereafter. Hand, to whom Johnson gave written authority “to take charge of, care for, and protect the goods,” up to that time, had been in the employ of Norris, and the bill of sale, which Hand showed the officer at the time the levy was made, on its face showed that Johnson had purchased the entire stock from Norris. We do not think there was the immediate delivery and actual continued change of possession of the goods as required by section 2473, Nev. St. 1898, which provides, so far as material here, as follows:

“Every sale made'by a vendor of goods or chattels in Ms possession or under Ms control, and every assignment of goods and chattels, unless the same be accompanied by a delivery within a reasonable time, and be followed by an actual and continued change of the possession of the things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or assignor, or subsequent purchasers in good faith.” (Kirtland v. Snow, 20 Conn. 23; Edward's v. Bank, 59 Cal. 148; Claflin v. Rosenberg, 42 Mo. 448, 97 Am. Dec. 336.)

As we have pointed out in the foregoing statement of facts, the goods which appellant purchased from Norris were mingled with those purchased from Cox and were not capable of being identified or distinguished. Appellant made no offer at the time the levy was made, nor at any time thereafter, to point out or to separate the goods purchased from Norris from those purchased from Cox; on the contrary, appellant made demand on the officer for the return of all the property. Under these circumstances the officer making the levy not only had the right, but was bound to levy on the whole of said goods, or so much thereof as was necessary to satisfy the several claims upon which the actions were predicated in which the writs of attachment and the writs of execution were issued. The law is well settled that where goods are intermixed and confused with the knowledge of the owners thereof, so that they are incapable of being identified or distinguished, as the record shows was done in this case, and a part only of the goods would be subject to levy were it not for such commingling and confusion of property, it is .incumbent upon the party claiming to be the owner of that portion not subject to levy to point them out and make a demand for their return when seized by an officer under a writ of attachment or a writ of execution. And until this is done the officer making the levy is not, and cannot, be considered a trespasser.

In 8 Enc. Pl. & Pr., 533, the rule is tersely and, as we think, correctly stated as follows:

“When the goods belonging to the debtor are so mixed or confused with the goods belonging to a stranger that the property of the one cannot be identified and distinguished from the property of the other, and if the stranger fails to point out to the sheriff or designate the goods which are not subject to execution, the sheriff may levy on the whole.”

In Wellington v. Sedgwick, 12 Cal. 469, the Supreme Court of California announced the same doctrine, and in the course of the opinion it is said:

“If the goods bought were fraudulently sold to Wellington, they were, of course, subject to execution; and if they were so mixed or confused with other goods as that they could not be identified or distinguished, and Wellington failed to point out to the sheriff, or designate the goods which were not subject to execution, the sheriff could not be liable for levying on the whole. But the sheriff would be bound, after the levy, on notice to him of the goods not liable, to restore them; but this notice must be specific, apprising him of and designating the particular goods improperly seized, and must be given previously to suit brought.” (1 Shinn on Attachment and Grn. 210; Lewis v. Whittemore, 5 N. H. 364, 22 Am. Dec. 466; Shumway v. Rutter, 8 Pick. [Mass.] 443, 19 Am. Dec. 340; Sawyer v. Merrill, 6 Pick. [Mass.] 478; Wilson v. Lane, 33 N. H. 466; Smokey v. Peters-Calhoun Co., 66 Miss. 471, 5 South. 632, 14 Am. St. Rep. 575; Robinson v. Holt, 39 N. H. 557, 75 Am. Dec. 233; Duke v. Welsh, 48 N. Y. Super. Ct. 516.)

We find no reversible error in the record. Tbe judgment is therefore affirmed with costs.

BAPTCH, C. J., and STEAUP, J., concur.