(concurring separately).
It is in conformity with my sense of justice that under the circumstances in this case the attachment was improperly issued and I therefore concur in that ruling. However, I desire to state my own basis for that conclusion.
The plaintiff Bank’s action to foreclose on the defendant’s property is grounded upon the note and mortgage executed by the defendant and upon which the defendant was liable personally; and this would be so quite irrespective of whether security had been given or not.
It is my view that the entire loan and mortgage transaction should properly be regarded as imposing rights and duties on both the mortgagor and mortgagee. Where the mortgagor makes an express promise to pay, he is then under a personal obligation to pay. Ordinarily, a holder of a note secured by a mortgage would have the right to sue the mortgagor and hold him personally liable on the note alone, or to foreclose on the property, or to join such proceedings in one action. However, U.C.A. 78-37-2 has modified this by requiring that the holder of a note secured by a mortgage first exhaust the security before an ancillary attachment is permissible. U.C.A. 78-37-2 states that if:
. it appears from the return of the officer making the sale that the proceeds are insufficient and a balance still remains due, judgment therefor must then be docketed by the clerk and execution may be issued for such balance as in other cases; but no general execution shall issue until after the sale of the mortgaged property and the application of the amount realized as aforesaid.
Thus, if we looked to this statute alone, the creditor would have to rely on his security before resorting to the alternative of attachment.1
*1007Notwithstanding the foregoing, plaintiff Bank places reliance upon Rule 64C(a), U.R. C.P. which expressly allows an attachment where security is held “ . . .if originally so secured, that such security has without any act of the plaintiff or person to whom the security was given, become impaired ; . . . ” (All emphasis herein added.) In reference to cases cited to the effect that attachment should not issue,2 it should be noted that they are based on statutes which require that the security “has become valueless,” rather than merely impaired. It should also be realized that our rule just quoted, authorizing attachment if the security had become impaired, became part of our law as of January 1, 1950, as part of the sweeping change brought about by the adoption of Utah Rules of Civil Procedure; and therefore cases decided prior to that time do not deal with the application of that rule.3
It is on the basis of what I state herein that I agree that plaintiff Bank did not meet its obligations under the law. It is true that its affidavit stated that the security had become impaired and would not cover the amount of its claim against defendant. Our Court has long held that such a statement of a conclusion is not sufficient to justify an attachment, but that the plaintiff must state with particularity, evidentia-ry facts which justify the issuance of such a writ.4 The case of Western Auto v. Gurnea5 is similar to the instant ease in that on the day of filing the complaint the plaintiff also filed an affidavit for a writ of attachment stating that he was apprehensive of loss and alleging that the defendant was insolvent. The court held that the plaintiff must set forth facts justifying the issuance of a writ of attachment and affirmed the order dissolving the attachment. Similarly, in the present case, no such facts were stated to warrant the issuance of a writ of attachment.
Furthermore, the prejudgment remedy of attachment allows deprivation of the debt- or’s property and is therefore subject to the principle embodied in Rule 64A of U.R.C.P. which provides that before any prejudgment writ may be issued, notice and opportunity to be heard must be given to the adverse party. (Except in specific circumstances, not present here.) It also provides that the writ shall be issued only on written motion and pursuant to a written order of the court. It is true that this rule was amended effective November 1, 1972, and that the rule itself is therefore not specifically applicable here. However, the amendment of the rule was but a recognition of the necessity for observing due process in law in such proceedings, which requires both a notice to the debtor and a judicial determination of the propriety of the attachment before the debtor’s property is taken.6
For the reason that plaintiff failed to meet the conditions above stated, I agree in the ruling that the writ of attachment should be quashed.
. Jensen v. Lichtenstein, 45 Utah 320, 145 P. 1036 (1915); First National Bank of Coalville v. Boley, 90 Utah 341, 61 P.2d 621 (1936).
. See Blankenship, n. 5; Barbieri, n. 7; cited in main opinion.
. See Salt Lake Valley Loan & Trust Company, n. 1; Zions Savings Bank & Trust Co., n. 2; Blue Creek Land & Livestock Co., n. 3; cited in main opinion.
. Bowers v. London Bank of Utah, 3 Utah 417, 4 P. 225 (1884); Deseret Nat. Bank of Salt Lake City v. Little, Roundy & Co., 13 Utah 265, 44 P. 930 (1896).
. 73 Utah 423, 274 P. 863 (1929).
. Article 1, Sec. 7 of the Utah Constitution provides that, “No person shall be deprived of life, liberty or property, without due process of law.” Amendments 5 and 14 of the U.S. Constitution have similar provisions. See also: Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).