44 Neb. 900 | Neb. | 1895
July 20, 1891, plaintiffs in error commenced an action in the district court of Lancaster county against the defendants in error, upon a guaranty, to recover the sum of $1,513.45 and interest, and also in connection with the action instituted attachment proceedings, in which an order issued and a levy was made. The attachment was dissolved of date September 21, 1891, and on October 1, 1891, the defendants in error commenced an action against plaintiffs in error in justice court of Lancaster county, upon the bond which had been given in the attachment proceedings, and claimed damages in the sum of $200. On October 6, 1891, the plaintiffs in error filed an answer in this suit in justice court, consisting of a general denial and an affirmative defense, alleging the liability of defendants in error upon the guaranty, and asking that any amount found due the defendants in error upon the bond as damages should be credited on their claim by reason of such contract of guaranty, and on the same day attorneys for defendants in
“ This cause, having been heretofore on a former day of this term of court, to-wit, February 8, 1893, tried and submitted to the court, now comes on for final determination, and after due consideration, and being fully advised in the premises, the court finds that there is due the plaintiffs Marshall Field & Co. upon the cause of action set forth in their petition from the defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross the sum of $1,513.45 principal and $317.80 interest thereon, making a total sum of $1,831.25.
“The court further finds that there is due the defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross the sum of $100 by reason of the wrongful attachment proceedings set forth in their answer and counter-claim and for attorneys’ fees in procuring a dismissal of said attachment, and •the court further finds that the said plaintiffs Marshall Field & Co. and the defendant H. R. Nissley are liable to said defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross for said sum upon their undertaking for said attachment.
“It is therefore considered and adjudged by the court that the said plaintiffs Marshall Field & Co. do have and recover of and from the said defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross the sum of one thousand*903 •eight hundred thirty-one and ($1,831.25) dollars, as above found due them, with interest thereon at the rate of «even per cent per annum from this date until paid, together with the costs of this action, taxed at $38.95.
“And it is further considered-and adjudged by the court that the said defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross .do have and recover of and from the said plaintiffs Marshall Field & Co. and H. R. Nissley the sum •of one hundred and ($100.00) dollars damages sustained by them as above set forth, with interest thereon at the rate of seven per cent per annum from this date until paid, together with the costs of this proceeding, taxed at $41.30.
“The court further finds that Messrs. Wooley & Gibson and R. D. Stearns have an attorney’s lien upon said judgment of R. H. Maxwell, Frank Sharpe, and Thomas Ross, and against the said Marshall Field & Co. and H. R. Nissley in the sum of $100, and it is considered and decreed by the court that said attorney’s lien is prior and paramount to the claim and set-off of the said plaintiffs herein, •or the said defendants R. H. Maxwell, Frank Sharpe, and Thomas Ross.”
The second and third assignments of error refer to the right of plaintiffs in error to have the amount due them «et off as against any sum ascertained to be due defendants in error as damages upon the attachment bond. In the case of Raymond v. Green, 12 Neb., 215, it was held by this court that in an action upon an undertaking in attachment, a claim due from the plaintiff in such action to the principals in the bond was a proper subject of set-off, and this seems decisive of the question raised in regard to the «et-off in the case at bar, and in accordance with the rule then announced the claim of plaintiffs in error was a competent set-off.
The only further point raised by the assignments of the petition in error, which is argued, is in relation to the action
Reversed and remanded.