dissenting:
I dissent.
The appellant has described the problem here involved in his statement of the nature of the action, “This is an appeal from an order denying motion to discharge a writ of attachment.” It is the position of this writer that the decision of this court should be limited to that issue alone, and should not in anywise be based upon a possible ground for a motion to dismiss the entire action, which, it seems to me, is the basis of the majority opinion. If a ground for dismissal exists, then the appellant should have pursued that course under Rule 12, NRCP. At line 4, page 5, of appellant’s opening brief, *123he states: “The respondent’s complaint and affidavit in support of attachment fails to state a cause of action upon which a writ of attachment can properly be granted.” (Emphasis added.)
Granted that rules of pleáding should be liberally construed in the trial court, certainly some precision should be expected and required on any application to an appellate court. The function of an appellate court is to consider the specific question presented to it in the light of the rules governing appellate practice and procedure, and not to attempt to find some way to provide relief regardless of the inadequacy of the appellant’s presentation. Ordinarily this means that the lower court should be affirmed unless it clearly appears that the appellant has established a right to the specific relief requested.
The California Supreme Court recognized the difference between a motion to dismiss and a motion to discharge an attachment in two opinions rendered in 1890, one being Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086 (1890), and the other being Barbieri v. Ramelli, 84 Cal. 174, 24 P. 113 (1890). The first case, which is cited in the majority opinion, reversed the judgment rendered in the trial court because of the “one-action rule” and ordered dismissal. Justice McFarland concurred only because the decision was consistent with earlier decisions, and stated, “If the question were an open one, I would come to a different conclusion.” The second Barbieri v. Ramelli opinion was on an appeal in the same case from an order of the trial court denying a motion to discharge and dissolve an attachment. The defendants filed an affidavit in support of their motion to discharge the attachment in which facts were specifically set forth showing that the security had not depreciated in value, but rather had increased in value. Justice McFarland wrote the unanimous opinion of the Court and stated at page 114 of 24 P.: “. . . It is true that the affidavit of plaintiff states the general conclusion that the mortgage has become valueless, which was sufficient, no doubt, to justify the clerk in issuing the writ; but the affidavit of defendant contained a statement of specific facts which, if true, shows that the mortgage had not become valueless. Plaintiff had the opportunity, under section 557 of *124the Code, to contradict these specific statements of fact made by defendant, or to state any other facts; and, not having done so, we think that defendant’s affidavit must be taken as establishing the truth of what it contains. And, if the security had not become valueless, then defendants were entitled to have the attachment dissolved. Of course, if there had been any substantial conflict in the evidence as to the facts involved, we would not disturb the ruling of the court below.” The lower court was reversed, but only because the plaintiff did not meet the defendants’ evidence regarding value.
Before going further, I wish to state that I agree that a trust deed clearly falls within the intendment of NRS 40.430. It should likewise be clear, and it is to me, that the “one-action statute” does not preclude suit on the note when the security for the debt has become valueless, or of insufficient value, and that attachment may issue in the action so filed. In providing as it did in § 1 of NRS 31.010, the legislature could have had no other intention than to allow such a suit and attachment.
In my opinion, the only question here involved is whether the writ of attachment was improperly issued.
NRS 31.200 provides three grounds for discharge of attachment, the first of which, “(a) That the writ was improperly issued,” being the only possible ground available in this case.
NRS 31.210 provides that when a motion to discharge attachment is made on affidavits, the plaintiff may oppose by affidavits.
NRS 31.220 provides as follows: “If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged; but such attachment shall not be discharged if at or before the hearing of such application the writ of attachment or the affidavit or undertaking upon which such attachment was based shall be amended and made to conform to the provisions of this chapter.” (Emphasis supplied.)
The italicized language can only be interpreted to mean that “improperly or irregularly issued” refers solely to defects contained in the writ of attachment or the affidavit or the undertaking. Clearly, the propriety *125of the bringing of the action has nothing to do with possible defects in the writ, the affidavit or the undertaking. The language of the second Barbieri v. Ramelli case supports this position. And, although not directly in point, Kuehn v. Patroni, 20 Nev. 203 (1888), is definitely helpful. There this court stated, in substance, that a motion to discharge attachment pursuant to NRS 31.200 should be denied where the affidavit in support of the motion consists of denials of general facts constituting the cause of action set forth in the complaint— that matters involving the merits of the case will not be considered on such a motion.
Also, see 6 Am.Jur.2d, Attachment and Garnishment § 429 at page 862: “As a general rule, the merits of the action aided by attachment cannot be inquired into or adjudicated in a motion to dissolve the attachment; otherwise an applicant for the dissolution could force a trial of the merits of the case on his motion. . . . However, in some instances, inquiry into the merits of the main action have been allowed, usually as an exception to, or relaxation of, the general rule; . . .”
Also see Witkin, California Procedure, Provisional Remedies § 93, page 926: “ (1) Cause Not Within C.C.P. 537. If the cause of action stated in the complaint is not within the class of cases in which attachment will issue, the attachment may be dissolved. (Citations.) (2) No Cause of Action. Suppose the complaint sets forth a type of action within the terms of C.C.P. 537 but, tested by the rules of pleading, it fails to state a cause of action. It might well be argued that the attachment should be dissolved. However, two rules usually operate to preclude this result: First, the merits of the main case cannot be determined on a motion to discharge an attachment. (Citations) Second, the motion cannot be made to operate as a demurrer, i.e., it cannot raise defects of pleading which are capable of cure by amendment. (Citations.).”
Also see Section 2, Rule 35, District Court Rules: “No attachment shall be dissolved by reason of any defect in the attachment papers that can be amended without affecting the substantial rights of the parties.”
The only possible ground the appellant can have for *126discharging the attachment is the sufficiency of the affidavit, and it very definitely appears that this ground was never raised in the court below. The appellant seeks to show that this point was raised in the lower court by stating in his reply brief at line 3, page 2, “The sufficiency of the affidavit in support of attachment is automatically put in issue where the holder of a deed of trust secured by an interest in real property attempts to bring direct action on the debt.” This is a feeble effort, wholly without supporting authority, and even if true, would be of no avail since the point was never mentioned in the lower court. If the integrity of decisions of trial courts is to be recognized and preserved, no one should be allowed to play fast and loose with the courts’ efforts and functions, and irresponsibility on the part of counsel should not be countenanced.
Had the sufficiency of the affidavit been raised in the lower court, I would consider that the rule stated in Bar-bieri v. Ramelli, supra, would supply ample authority for holding that the appellant, having furnished no evidence regarding value, would not be entitled to have the attachment discharged, regardless of the sufficiency of the affidavit, which, incidentally, in this case leaves something to be desired.
For the reasons stated, the order of the lower court denying the motion to discharge attachment should be affirmed.