recognizing that courts should interpret a statute to avoid rendering any language nugatory
How later courts described this case
- recognizing that courts should interpret a statute to avoid rendering any language nugatory
- noting that "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided"
- describing the judicial foreclosure sale as "but one judicial action” which would accomplish the purpose of suing on the note or selling the land
- "[N]o part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can be properly avoided." (internal quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
Thompson, J.,
concurring:
The court holds that the affidavit supporting the attachment *651 is insufficient and on this basis affirms the order below discharging the attachment. To this extent I agree with the opinion. However, I do not agree that the ancillary remedy of attachment is available in a judicial foreclosure proceeding. Attachment is ancillary to an action “upon a contract, express or implied, for the direct payment of money.” NRS 30.010. The majority erroneously assume that judicial foreclosure, NRS 40.430, is such an action. I view judicial foreclosure as a separate statutory proceeding distinct from and not within the contract actions contemplated by the attachment statute. The very purpose of the “one action” rule, 40.430, is to preclude an action upon the secured note with its ancillary aids, unless the security is waived or has become valueless. McMillan v. United Mortgage, 82 Nev. 117 , 412 P.2d 604 (1966). This purpose prevents harrassment and accommodates the implied understanding between the parties that the land shall constitute the primary fund to secure the debt. Respectfully, I suggest that the opinion today subverts the underlying purpose of the one action rule. Although McMillan v. United Mortgage, supra, did not concern judicial foreclosure, its reasoning applies with even greater force to a judicial foreclosure proceeding.