Mohle v. Tschirch

Per Curiam. Defendant was indebted to plaintiff in the sum of six hundred dollars money loaned, and the further sum of ninety-eight dollars for wages as a laborer, a portion of the latter sum being for work done within sixty days prior to the levy of the attachment as hereinafter mentioned.

Plaintiff brought suit to recover his gross demand, and issued therein an attachment on the 13th, which was levied upon personal property of defendant on the 15th of November, 1880. On the 16 th of the same month six laborers served a notice of preferred claims, under section 1206, Code of Civil Procedure, on the sheriff, the plaintiff and the defendant, and the same day they and the plaintiff stipulated and agreed with defendant, by written stipulation filed in the action, that the attached property should be sold on the 18th "for the benefit of this plaintiff or those who were entitled to the proceeds of said property.” On the 18th judgment was entered by confession in the action, and the property was sold by the sheriff for six hundred and twenty-five dollars, which sum is now in the hands of that officer.

Five of the six laborers subsequently assigned their claims to the sixth, Bierks, who, on the 24th of November, within the ten days, brought suit to recover the amount of the claims and recovered judgment in the justices’ court.

Afterward Dierks, on petition filed in this action, obtained an .order on the plaintiff and the sheriff to show cause why the latter should not pay the amount of said justice’s judgment out of the moneys in his hands. On the 19th of January, 1881, the Superior Court made the order for the sheriff to pay the amount of said judgment, from which this appeal was taken.

It is contended by appellant that section 1206 of the Code of Civil Procedure is unconstitutional, in that it provides for taking private property without due process of law, and that it is special legislation. The section provides for notice to the attaching creditor, and the latter knows that his attachment will hold the property for the benefit of the claims of the preferred class which may be established. Our attention has not been called to any subdivision of section 25 of article 4 of the State Constitu[383]tian, which prohibits such legislation as is enacted in section 1206 of the Code of Civil Procedure.

It is also urged that the claimants lost their preference because the sale was not made under execution, but under _a stipulation in the cause made by plaintiff, defendant, and the labor claimants. The sale under the stipulation was, however, but a substituted sale for one under execution.