I concur in the conclusion reached by Chief Justice Rice “that the sale of the property as disclosed by the affidavit in this case did not deprive respondent of its right of attachment and that it could truthfully make the affidavit required by the statute to the effect that the security had become valueless without any act on its part.” I am, however, out of accord with that portion of the opinion which holds “that the amended affidavit is insufficient in substance to justify the attachment.” The Chief Justice says, if I correctly understand the language used in his *59opinion, that the amended affidavit would be sufficient in substance, had the scrivener inserted therein in addition to the language used, words showing that there was no other security besides the mortgage. The amended affidavit, as I read it, clearly shows that there never was at any time either before or after the action was commenced, security given other than that described in the mortgage. Affiant in his amended affidavit states “that the balance due on said note is not cmd at the date of the commencement of this action was not secured by amy mortgage or lien upon the reed or personal property or any pledge of personal property .... but that prior to the commencement of this action all of the personal property described in this mortgage had, by agreement between plaintiff and defendants, been sold by defendants and the money received therefrom applied upon the payment made upon the said note .... and thus by the sale of said property so made by defendants the total security for such note has, without any act of the plaintiff, .... become valueless. ” The foregoing statement carries no other conviction to the mind and can mean nothing other than that the total security given to secure the indebtedness became extinguished, and, as Chief Justice Bice correctly holds, “without any act of the plaintiff.” The total security means the entire security, and as used in this connection that the debt sued upon was not secured at the time of the commencement of the action by any mortgage or lien upon real or personal property, and clearly negatives all forms of security mentioned in the statute. In the original majority opinion, written by Justice Dunn, he says: ‘ ‘ That by fair interpretation [of the affidavit] it means that the note in question was not secured in any other manner than by the chattel mortgage, which security became valueless without any act of the plaintiff and at the commencement of the present action was not secured by any mortgage o.r lien upon real or personal property or any pledge of personal property and that the amended affidavit in this regard was sufficient and should be upheld.” The construction placed upon the affidavit by Chief Justice Bice is too narrow and technical. An affidavit is not a pleading *60and is therefore not subject to the same technical construction that may be justified in construing a pleading. As is stated by this court in the ease of Knutsen v. Phillips, 16 Ida. 267, 101 Pac. 956: “An affidavit for writ of attachment must be liberally construed and must be held sufficient if it appears that the language therein used is substantially equivalent to that used in sec. 4303, Revised Codes (now C. S., sec. 6780).” (3 Ency. Pleading & Practice, 10.) The important fact to be shown by the affidavit is that the plaintiff has no security for his claim. To hold otherwise operates to defeat the intent and purpose of the statute.
Under the provisions of C. S., sec. 6780, subd. 1, the legislature has provided for attachment in two distinct •classes of cases. The affidavit provided for is different in each class. In neither class is one required to state the facts stated in the other class. The first class of cases is where the debt has not been secured. There the affidavit must state “that the payment of the same has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property.” This is the class of case covered by Knutsen v. Phillips, supra. The other class is where the debt has been secured and there the affidavit must state the fact that security has been given and also that such security has, without any act of the plaintiff or the person to whom the security was given, became valueless. In this latter class it is not necessary to state that the debt “has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property.” In the case of Vollmer v. Spencer, 5 Ida. 557, at page 561, 51 Pac. 609, this court says: “When a mortgage has been given to secure a debt and the creditor thereafter sues to recover the debt, he must, in order to have the benefit of an attachment, state in his affidavit therefor that such mortgage was given and that such security has, without any act of the plaintiff or person to whom it was given, become valueless. ’ ’
In the ease of Heaton v. Panhandle Smelting Co., 32 Ida. 146, 179 Pac. 510, this court said: “That the statute provided for two distinct grounds for attachment and the affi*61davit should cover but one of such grounds.” In the ease last above quoted the affidavit covered both grounds and for that reason, the affidavit being in the alternative, was held to be bad. In the instant case it is insisted that the affidavit is bad because it fails to state that there was no security other than that contained in the chattel mortgage which had not been exhausted. Even if this be required, we think the affidavit does clearly show it. In the ease last above cited it was held to be bad because it was impossible to ascertain therefrom whether security for the debt had been given or if given, had, without any act of the plaintiff or person to whom it was given, become valueless. In this ease it is clear that the security given had all been exhausted and that there was no other. The purpose of the legislature in providing for amendments to affidavits on attachment is not in harmony with the technical construction sought to be placed upon the language used in the amended affidavit under consideration. The intent of the legislature as expressed in the statute is therefore defeated by judicial construction.
The order of the trial court denying the motion to quash the writ of attachment is affirmed. Costs awarded to respondent.
McCarthy and Lee, JJ., concur. DUNN, J."While I adhere to the views expressed on the first rehearing, my inclination is to hold, regardless of the sufficiency of the affidavit, that respondent, having taken security for the debt due it and having had the benefit of such security, is not entitled to attach. The clear intent of the legislature, in my opinion, was, in the first instance, to' deny the right of attachment to a plaintiff who had taken security for a debt due him, but to make an exception in favor of a plaintiff when his security had become valueless without his act or that of the person to whom the security was given. There are many ways in which security might become valueless, some of which are suggested in the opinion of Chief Justice Rice, such as physical destruction of the *62property, removal from jurisdiction of the court, etc. It was to protect the plaintiff against such misfortunes as these and many others that might occur to his security without his act or that of the person to whom the security was given that the law made the exception mentioned, entitling him to attach after he had taken security for his debt. To hold that one who has had security and has realized on it by the sale of the debtor’s property comes within the expression that his “security has become valueless” is to place a construction upon such language wholly unwarranted, it seems to me. No such understanding can be had if we confine ourselves to the ordinary meaning of the words used in subdivision 1 of section 6780.