Wallace v. Perry

10 Citing cases

  1. Salt Lake Hardware Company v. Steffler

    87 Idaho 383 (Idaho 1964)   Cited 3 times

    If an affidavit for attachment is defective in not stating all the statute requires, or if it is false, the court has no jurisdiction to issue the writ. Wallace v. Perry, 74 Idaho 86, at 95, 257 P.2d 231; American Fruit Growers Inc. v. Walmstad, 44 Idaho 786, 260 P. 168; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669. If an affidavit for an attachment is defective in not stating all the statute requires, or if it is false, the court has no jurisdiction to issue the writ of attachment. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231; American Fruit Growers Inc. v. Walmstad, 44 Idaho 786, 260 P. 168; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669.

  2. Stubborn Mule LLC v. Grey Ghost Precision LLC

    2:22-cv-00399-DCN (D. Idaho Jan. 29, 2024)

    However, an uncertain amount of damages-to be conclusively determined at trial-does not warrant discharge of a writ of attachment. Wallace v. Perry, 257 P.2d 231, 235 (Idaho 1953) (“That the amount of recovery is uncertain and has to be proved does not defeat attachment”); see also Citizens Auto. Inter-Ins. Exch. v. Andrus, 212 P.2d 406, 411 (Idaho 1949)

  3. Eta Compute, Inc. v. Semones

    Case No. 1:18-cv-00552-BLW (D. Idaho Jan. 18, 2019)   Cited 3 times
    In Semones, the defendant admitted to stealing $3,000,000 from the plaintiff and subsequently returning only $1,500,000.

    Further, there is no evidence that the attachment is sought, or that the action is prosecuted, to hinder, delay, or defraud any other of defendants' creditors. Wallace v. Perry, 257 P.2d 231, 233 (Idaho 1953); see also, Smith v. Smith, 511 P.2d 294 (Idaho 1973) ("The substance of an action for unjust enrichment lies in a promise, implied by law, that a party will render to the person entitled thereto that which in equity and good conscience belongs to the latter."); Hixon v. Allphin, 281 P.2d 1042, 1045 (Idaho 1955) ("The essence of a quasi contractual obligation lies in the fact that defendant has received a benefit which it would be inequitable for him to retain."); Cont'l Forest Prods. v. Chandler Supply Co, 518 P.2d 1201, 1205-06 (Idaho 1974) (same). Next, regarding the $270,000 transfer to AAP Holdings on the day of the show-cause hearing, the circumstances and timing of this transaction indicate an actual intent to hinder, delay, or defraud.

  4. Eta Compute, Inc. v. Semones

    Case No. 1:18-cv-00552-BLW (D. Idaho Dec. 21, 2018)   Cited 1 times

    United States District Court Wallace v. Perry, 257 P.2d 231, 233 (Idaho 1953); see also, Smith v. Smith, 511 P.2d 294 (Idaho 1973) ("The substance of an action for unjust enrichment lies in a promise, implied by law, that a party will render to the person entitled thereto that which in equity and good conscience belongs to the latter."); Hixon v. Allphin, 281 P.2d 1042, 1045 (Idaho 1955) ("The essence of a quasi contractual obligation lies in the fact that defendant has received a benefit which it would be inequitable for him to retain.

  5. Engineering/Remediation Res. Grp., Inc. v. Performance Sys., Inc.

    Case No. 1:17-cv-316-EJL (D. Idaho Sep. 7, 2017)   Cited 1 times

    Under Idaho law, "[w]here money is advanced on the purchase price of goods, and the seller fails or refuses to deliver, a suit to recover the money advanced is an implied contract for the direct payment of money permitting the issuance of an attachment." B.J. Carney & Co. v. Murphy, 195 P.2d 339, 383 (Idaho 1948); see also Wallace v. Perry, 257 P.2d 231, 233-235 (Idaho 1953). In this case, Defendant made a progress payment of $357,062.40 to PSI for the fabrication and installation of two 200,000 gallon welded water storage tanks.

  6. Cheirett v. Biggs (In re Biggs)

    563 B.R. 319 (Bankr. D. Idaho 2017)   Cited 6 times

    Such an action is based upon the tort of embezzlement, yet the action is one ex contractu , in which the plaintiff may have a writ of attachment." Wallace v. Perry , 74 Idaho 86, 257 P.2d 231, 233 (1953) (internal citations omitted). On the other, the Idaho Court of Appeals, in an unpublished decision, recently stated that "[e]mbezzlement is a criminal offense, Idaho Code § 18–2403 , and there is no civil tort of embezzlement.

  7. Bannock Title Company v. Lindsey

    388 P.2d 1011 (Idaho 1964)   Cited 2 times

    This claim is within the contemplation of the statute requiring that the action be for the "direct payment of money." In Wallace v. Perry, 74 Idaho 86, 92, 257 P.2d 231, 235, this Court stated: "That the amount of recovery is uncertain and has to be proved does not defeat attachment. Eaton v. Queen, 78 Cal.App.2d 571, 177 P.2d 997, at page 999.

  8. Marshall-Shaw v. Ford

    755 So. 2d 162 (Fla. Dist. Ct. App. 2000)   Cited 8 times

    W. Prosser W. Keeton, The Law of Torts § 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211, 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel.American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment §§ 7-8 (1943).

  9. Garel & Jacobs, P.A. v. Wick

    683 So. 2d 184 (Fla. Dist. Ct. App. 1996)   Cited 5 times

    W. Prosser W. Keeton, The Law of Torts S 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel. American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment SS 7-8 (1943).

  10. Barbouti v. Lysandrou

    559 So. 2d 648 (Fla. Dist. Ct. App. 1990)   Cited 12 times
    Noting that a defendant's tortiously taking of money or goods belonging to another gives rise to an implied obligation to return that property and that a plaintiff may "`waive' the tort action, and sue instead on a theoretical and fictitious contract of restitution of the benefits which the defendant has so received"

    W. Prosser W. Keeton, The Law of Torts § 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211, 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel. American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment §§ 7-8 (1943).