
    190 F. 466
    JOHNSTON et al. v. SHAW et al.
    No. 1,840.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 5, 1911.
    
      John McGinn, Campbell, Metson, Drew, Oatman & Mackenzie, and E. H. Ryan, for plaintiffs in error.
    L. P. Shackleford, Alfred Sutro, and Pillsbury, Madison & Sutro, for defendants in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts as above).

The controlling' question in this case is whether Applebaum, the defendant in the attachment suit had any interest in the attached property at the time of the levy of the attachment. Whether he had such an interest depends upon the construction to be placed upon the contracts entered into between himself and Johnston and the situation and relation of the parties with respect thereto at the time of the attachment; that is to say, the contracts provided for a succession of relations between the parties with respect to the working of the property, and these successive relations may tend to shpw what interest, if any, Applebaum had in the property.

The agreement of September 5, 1907, after reciting that Applebaum and Darud were lessees of a certain mining claim, and that Applebaum was desirous that Johnston should take full control, charge, and supervision of the working of said ground, provides that Johnston “is to advance the money necessary to pay the operating expenses, now until the said parties hereto shall commence to hoist pay”

It appears from the evidence that a small quantity of gold-dust was taken from the mine as early as September 14, 1907. There was also a small quantity taken on September 23, 1907, and there was evidence of a third cleanup in the fall of 1907, and then on May 5, 1908, the taking of the gold-dust from the mine was resumed and continued until the attachment was levied on May 29, 1908, at which time the value of' the gold-dust taken from the mine amounted to the sum of $16,420.92. On June 3d another small quantity was taken, amounting to $261.50, making a total of $16,682.41.

In books kept by Johnston it appears that he cleaned up from the working of the mine gold-dust at the dates and in the amounts as follows:

Credits.

Sept. 14. 4.55 Oz. Dust 78.50

23. 15.83 273.06

May 5. 88.20 at 17.35’ 1,521.45

9. 168.44 17.40 2.930.85

12. 266.55 4,737.97

15. 101.94 1,773.75

18. 103.90 1.807.86

23. 57.60 1,002.24

27. 30.47 530.18

29. 101.44 1,765.05

June 3. 15.03 261.50.

Balance $16,682.41

It is therefore not disputed that the first stage in the working of the mine — that is to say, the period prior to the time when the said “parties hereto shall commence to hoist pay” — had passed when the attachment was levied on May-29, 1907.

The agreement then provides: “And thereafter all the profits of said mine coming to the said parties hereto shall be taken possession of by the said H. R. Johnston to reimhurse him for the money so advanced, and until he shall be paid in full.”

There was evidence tending to show that this stage had also been passed when the attachment was levied. Johnston had advanced money for the working of the mine;but the gold-dust taken out had fully reimbursed him for such advances. The agreement then provides: “Thereafter and after the payment of the said money to the said H. R. Johnston so mentioned that all profits taken from said mine shall be paid to the said party of the first part herein until the sum of three thousand five hundred is paid, which sum is for the purpose of paying the creditors of the said Samuel Applebaum.”

The evidence tends to show that it was during this last stage in the working of the mine that the attachment was levied. It was after Johnston had been reimbursed for money advanced by him and when all the profits of the mine were to be paid to Applebaum for the purpose of paying his creditors until the sum of three thousand five hundred dollars had been paid him; but no money had been paid applebaum under this provision of the contract. It was next provided: “That thereafter all profits taken from said mine shall be divided between the parties hereto share and share alike.”

For the purpose of this case it is not necessary to consider whether the working of the mine had reached the stage when Applebaum was interested in the working of the mine under this last provision of the agreement. It is sufficient if he was interested in the property and by reason of his relation to the working of the mine was a tenant in common of all the property under the preceding provision of the agreement. The next provision is applicable to the entire relationship of the parties to the property, and is as follows: “And in consideration of the foregoing the said H. R. Johnston hereby agrees to take full control, management and supervision of said mine and premises and work and mine the same according to his best ability and endeavors in a minerlike manner and for the joint profit and benefit of the parties hereto."

It is further provided that: “This agreement shall continue and extend to the full term of the lay or lease agreement."

We have here in the whole contract successive relations carefully balancing the rights of each of the parties to an equality with the other in the joint enterprize of working the mine, but no money had been paid Applebaum under the provision providing for such payments. There does not seem to be much doubt that under this contract Applebaum and Johnston were tenants in common of all the property attached at the time the attachment was levied. But on September 7, 1907, Applebaum executed an assignment of the lease to Johnston. Did this assignment change Applebaum’s relation to the property? A second agreement executed by the parties on that day appears to answer this question. It provided: “It is hereby mutually agreed by and bétween the parties hereto that the said agreement made and entered into on the 5th day of September, 1907, between the parties hereto shall be and remain in full force and effect and shall not in any way be affected by the assignment this day made.”

In other words, as between Applebaum and Johnston Applebaum’s relation to the property was to continue as before. It was not to be in any way affected by the assignment. If he was a tenant in comm'on before the assignment, he continued a tenant in common after the assignment. The fact that Johnston was in possession of the property was immaterial. He was in possession for the interest and benefit of Applebaum as well as for himself. “The defendant’s interest in personal property need not, in order to its being subject to attachment, be several and exclusive. An interest held by him in common with others may be attached; and the property may be seized and removed, though the rights of the other joint owners may thereby be impaired.” Drake on Attachment (5th Ed.) § 248.

It is next contended by the plaintiffs in error that the second amended complaint did not state facts sufficient to constitute a cause of action for the reason that defendants did not allege that after the rendition of the judgment in the attachment suit a special execution was issued thereon to the marshal authorizing and commanding him to sell the attachéd property. It is'contended that until a valid order of sale had been made and incorporated in the judgment, and a special execution issued on such judgment and placed in the hands of the marshal, he was not lawfully authorized to demand of the plaintiffs in error the delivery of the attached property, or the payment of its value. The condition of the redelivery bond executed by Johnston and his sureties, and under which Johnston procured the release of the attached property, was that in consideration of such redelivery Johnston and his sureties, jointly and severally, undertook and promised “to redeliver the said property or pay the value thereof to the United States marshal, to whom execution upon a judgment obtained by the plaintiffs in said action may issue.”

Section 145 of the Alaska Code of Civil Procedure (Carter’s Ann.Codes, p. 175), under which this redelivery bond was given, provides .that: “The marshal may deliver any of the property attached to the defendant, or to any other person claiming it upon his giving a written undertaking therefor, executed by two or more sufficient sureties, engaging to redeliver it or pay the value thereof to the marshal, to whom execution upon a judgment obtained by the plaintiff in that action may be issued.”

There is no requirement here, either in the statute or in the bond, for a special execution. An execution was issued requiring the marshal to satisfy the judgment with interest out of the personal property of the judgment debtor, and to make sale thereof according to law. The marshal levied upon the property ordered to be sold by the judgment, and on no other property, and so made return upon the execution, with the further return that “said Johnston then and there neglected and refused to deliver said property or to pay the said value.” This was sufficient to fix the liability of the defendants on-the redelivery bond. No further or other demand was necessary or required. The plaintiffs in error; in support of their contention that this was not sufficient, cite the case of Gass v. Williams, 46 Ind. 253. In that case the question presented to the court upon a demurrer to a complaint was this: “Can an action be maintained upon a redelivery bond under * * * the Code when upon final hearing only a personal judgment is required and the attachment is dissolved?”

The court answered this question in the negative. Nothing was said concerning the necessity of alleging in the complaint that a special execution had been issued as a condition .precedent to liability upon the redelivery bond. The case, therefore, is not an authority for the position taken by the plaintiffs in error in this case.

The case of Lowry v. McGee, 75 Ind. 508, is also cited. The action in that case was for the possession of real estate. Each party to the action claimed title under a sheriff’s deed executed upon a sale under an execution. The party holding the later deed in date claimed priority of title by reason of the fact that the suit upon which his judgment had been rendered was commenced with an attachment proceeding and the property had been attached prior to the date of the judgment in favor of the party holding the prior deed. But it appears that his judgment was in personam for the amount of his claim without any judgment in rem against the property, or any order whatever in relation to the property or attachment proceeding. His claim that the attachment lien was merged in the personal judgment could not therefore be sustained,, and the court so held. The decision is not applicable to the present case.

The last case is that of Wright v. Manns, 111 Ind. 422, 12 N.E. 160. The action in that case was upon a redelivery bond given in an attachment suit where it was provided in the bond, in accordance with the statute in that behalf, that the party to whom the attached property had been delivered would “properly keep and take care of said property, and * * * on demand deliver to said sheriff * * * the. personal property so attached.” There was no allegation in the complaint upon this bond that the sherT iff had made the demand required by the statute and provided for in the bond. The Supreme Court accordingly held that the demurrer to the complaint pointing out this defect should have been sustained by the trial court. The court held further that the statute required a special execution commanding the sheriff to sell the attached property, and that until such a special execution had come into the hands of the sheriff he was not authorized to make the demand. The complaint before the court in the present case is not open to the objection sustained in that case, and we are of opinion that under the Alaska statute a special execution is not required to fix the liability of the obligors on the redelivery bond where a judgment has been entered directing the sale of the attached property and the execution follows the direction of the judgment.

It is finally contended that the clerk of the court in entering the default of the defendants in the attachment suit had no power or authority to enter other than a personal judgment against the defendants, and that in so far as the judgment ordered the sale of the attached property it was void. The contention cannot be sustained. The judgment shows on its face that the court, and not the clerk, ordered the attached property to be sold. The recital of the judgment in this behalf is as follows:

“And it further appearing to the court that certain property of the said defendant Samuel Applebaum has been attached in this action, to wit, all the right, title, and interest of the said Samuel Applebaum in and to the following described property (describing the property).

“It is further ordered and adjudged that the said property and the right, title, and interest of the defendant Samuel Applebaum therein, be sold to satisfy the plaintiffs’ demands.”

It will be presumed that such an order was an order of the court; but further than this it was alleged in the complaint that after the default of Applebaum “was duly entered therein by the clerk of said court, and said clerk thereupon duly entered judgment therein against said Applebaum and Darud, a copy of which said judgment is hereunto annexed marked ‘Exhibit C’ and prayed to be read as a part hereof.”

In their answer to the complaint the defendants did not deny this averment of the complaint. It therefore stands admitted and confessed and must be accepted as a fact that the judgment was duly entered. If duly entered, it was an order of the court, and the order of sale was an order of the court.

Finding no error in the record, the judgment of the District Court is affirmed.  