I am unable to agree with the opinion of the majority herein and respectfully dissent.
The majority opinion states:
"In the case of Steltzer v. Ansberry, the plaintiff did not seek to foreclose the chattel mortgage which it held on the truck. * * * The decree in the Steltzer case does not foreclose the chattel mortgage but first enters judgment against Ansberry for the amount of the note and costs, then holds that the claim or lien under the chattel mortgage is superior to the rights of any of the defendants."
In discussing the rights of the plaintiff herein as assignee under the decree of Steltzer case, the majority opinion further states:
"It must be kept in mind that in this case not only did the appellant's assignor sue out a specific attachment but he secured a judgment and decree foreclosing the specific attachment and not the chattel mortgage. The rights that Steltzer was claiming *Page 1247 were under the specific attachment and not under the chattel mortgage. * * * The parties saw fit to make no claim under the chattel mortgage but relied entirely upon the lien of the specific attachment. They foreclosed the specific attachment and secured a judgment and decree. By proceeding to foreclose the lien of the specific attachment, they waived all rights that they had under the chattel mortgage lien." I challenge such interpretation of the record.
As stated in the opinion, the Steltzer mortgage was recorded on January 10, 1940. Bordenaro purchased the truck from Fleck Auto Exchange and the Chase Investment Company secured a mortgage lien from Bordenaro, through Fleck, between the dates of March 11 and March 14, 1940. The attachment was ordered on March 20 and levied on March 26, 1940. After the levy of the attachment, Bordenaro and the Chase Investment Company intervened. Thereupon the plaintiff Steltzer filed an amendment to his petition, which petition was entitled, "Petition for Foreclosure of Chattel Mortgage and for Specific Attachment," and added to the allegations thereof the following:
"That since the filing of plaintiff's petition, in the above entitled matter, wherein Elbert Ansberry was the only defendant named, this plaintiff has learned that the defendants Ray Roberts, Joe Bordenaro, and Chase Investment Company claim some right, title, and interest, in and to the 1939 Chevrolet 3/4 Ton Pickup truck, as described in plaintiff's petition, either by way of purchase, conditional bill of sale, or mortgage, but states that whatever interest these defendants have or claim to have in and to said truck, that the same is junior and inferior to the right, title, and claim of this plaintiff.
"Plaintiff states that he is still the owner and holder of the note and chattel mortgage and conditional sale contract described in plaintiff's petition, and that the same is past due, by reason of the terms thereof.
"Wherefore, plaintiff prays as in his original petition and further asks that any claim which any of the above named defendants have or claim to have in and to the 1939 Chevrolet 3/4 Ton Pickup Truck, described in plaintiff's petition, that said claim or right, title, or interest, be found to be junior and inferior to this plaintiff's chattel mortgage and conditional sale contract." *Page 1248
As pointed out in the majority opinion, the decree that was entered recited that plaintiff was entitled to immediate possession of the motor vehicle attached herein. However, in addition to the provisions of the decree quoted by the majority, the decree also provided as follows:
"It Is Further Ordered, Adjudged and Decreed that the lien and claim of plaintiff's chattel mortgage and conditional sales contract as sued upon in plaintiff's petition, is superior and prior to the claim or interest of all of the defendants named herein, and that any claim or interest which any of said defendants have in and to the motor vehicle being foreclosed upon herein, and described as a 1939 Chevrolet 3/4 Ton Pickup Truck, Model No. J.D. Serial No. 21JDO4-6515, Motor No. AT 2468519, is junior and inferior to the right, title, and interest of this plaintiff in and to said motor vehicle."
The portion of the decree last above quoted, considered with the amendment to petition above quoted, clearly demonstrates that the conclusion of the majority that the plaintiff Steltzer "waived all rights that they had under the chattel mortgage lien" is contrary to the record. As above pointed out, the attachment was levied on March 26, 1940. Chase Investment Company secured its mortgage prior thereto about March 14, 1940, and Bordenaro purchased the truck a day or so previous to that. The only possible theory under which the decree could have been entered adjudging Steltzer's interests in the truck superior to those of Bordenaro and the Chase Investment Company was by foreclosure of the chattel mortgage lien. Without the chattel mortgage lien, the attachment lien was subsequent to and inferior to the interests of the Chase Investment Company and Bordenaro. The decree authorized the issuance of special execution to foreclose the plaintiff's liens. These liens were both the lien of the attachment and the lien of the chattel mortgage.
The majority opinion agrees with the decision of the Nebraska court, "that a mortgagee of chattels does not waive or lose his lien by causing an attachment to be levied upon the mortgaged property." First Nat. Bk. v. Johnson, 68 Neb. 641, 644,94 N.W. 837, 838. This is in accordance with the express holding of this court in the case of Stein v. McAuley, 147 Iowa 630, *Page 1249 125 N.W. 336, 27 L.R.A., N.S., 692, 140 Am. St. Rep. 332, to which the majority opinion refers. The decree herein foreclosed both the chattel mortgage lien and the attachment lien. The plaintiff Mutual Surety Company is the assignee of the decree of foreclosure. Since the chattel mortgage was properly recorded and its lien has never been satisfied or discharged, the right to a special execution herein is determined from the lien of the chattel mortgage. Such lien is superior to the interests of the defendant Bailey. This court is in error when it holds otherwise.
I am disposed to the view that plaintiff, as assignee of the judgment of foreclosure herein, is limited to the right to a special execution to enforce such judgment, which right is not sufficient to sustain an action of replevin such as was brought herein. Accordingly, the trial court may have reached the right result, but the theory under which this court undertakes to affirm the case seems to me to be clearly erroneous.