253 N.W. 616 | S.D. | 1934
The plaintiff brought this action to recover on a promissory note and at the time of the commencement of the action procured from the clerk of courts a warrant of attachment. Under the warrant the sheriff on May 28, 1932, levied on the stock of merchandise and fixtures in defendant's place of business in Vermillion. Thereafter the defendant secured an order to show cause why the attachment should not be vacated and dissolved. Counter and reply affidavits were served and filed, and after hearing the circuit court entered an order, dated June 15, 1932, vacating and dissolving the attachment. The court in its *491 order directed the sheriff "to release said attachment and all proceedings taken thereunder and return to the defendant any and all property held" by virtue of the attachment. The sheriff complied with such order by returning the attached property to the defendant.
Thereafter on June 30, 1932, plaintiff obtained an order granting leave to file and serve additional showing and requiring the defendant to show cause why the order of June 15, 1932, should not be vacated and why the court should not enter its order denying the motion of the defendant previously made for the dissolution of the attachment. No counter affidavits on the merits were filed, but defendant relied upon the failure of the sheriff to file with the clerk of courts within 20 days after levy an inventory and return and upon showing that the additional evidence submitted was available and known to plaintiff and its attorneys at the time of the first hearing. The court heard the motion to reinstate the attachment and on September 15, 1932, entered an order vacating the order of June 15th and denying the motion of the defendant to vacate and dissolve the attachment. This appeal is taken by the defendant from such order.
[1, 2] The remedy by attachment is ancillary to an action by which a plaintiff is enabled to acquire a lien upon the property or effects of a defendant for the satisfaction of a judgment which plaintiff may obtain. It is classified under the provisions of the Code as one of the provisional remedies in civil actions. Charles Mix County Bank v. Calta,
It appears from the record that defendant denied the existence of the facts stated in the affidavit upon which the warrant of attachment issued, and the one question for determination by the *492
trial court was whether facts existed upon which the attachment might issue. The order of June 15, 1932, vacating and dissolving the attachment, recites that certain affidavits were presented and that the order was made upon the files and records including such affidavits. This decision was, in other words, based upon the merits, and not upon any irregularity in the proceedings. Referring to cases supporting the rule that the doctrine of res judicata does not apply to a decision of a motion, this court in the early case of Weber v. Tschetter,
[3, 4] But an order, as indicated in Weber v. Tschetter, *494
supra, made in a pending action involving a question of practice or appealing to the discretion of the court, is not an adjudication preventing the renewal of the motion. Jeansch v. Lewis,
[5] A defendant or any person who has acquired a lien upon or interest in defendant's property after it has been attached may move for a dissolution of an attachment upon the grounds of irregularities or defects in the proceedings to procure the issuance of a warrant of attachment, and the insufficiency of the grounds of the attachment stated, in the affidavit on which warrant was issued. Section 2448, Rev. Code 1919. An attachment being a creature of statute is operative and existent no longer than the statute may provide, but whether an order of dissolution from which no appeal is taken in due time so terminates the attachment proceedings as to divest a trial court of jurisdiction to set aside the order of dissolution on rehearing, we need not determine. We may concede, for purposes of decision, that the entry of an order dissolving an attachment does not preclude under proper circumstances a motion to set aside the order or a rehearing. It is the settled law of this jurisdiction that where an issue of fact is distincly and formally presented to the court for determination as a means of fixing the legal rights of the parties and from which determination either party may appeal, the decision of the court upon such issue actually litigated is binding upon the parties and conclusive to that extent. Weber v. Tschetter, supra; Hall v. Harris, supra; Whittaker v. Warren,
[6] Plaintiff in the instant case sought on the rehearing a retrial of the question before the court on the first motion to discharge the attachment. Hence, we conclude that the determination of the question, fully litigated with right of appeal, was conclusive and the court erred in granting a rehearing.
It is unnecessary, therefore, to consider the contention of counsel that under the decision of this court in Interstate Surety Co. v. Bangasser,
The order appealed from is reversed.
All the Judges concur.