1 N.D. 298 | N.D. | 1890
The defendant and appellant, haying given the statutory undertaking to discharge the attachment under which his property had been seized, now insists that his right to have the attachment dissolved because improvidently issued is nevertheless unimpaired. The ground of the attachment was the non-residence of the defendant, and on the motion to dissolve it the defendant presented affidavits showing that the attachment affidavit was in that respect false. These affidavits, on the motion of the plaintiff, were stricken from, the files, the court below ruling that the right of defendant to move to dissolve on the ground that the attachment had been improvidently issued was lost by his giving the undertaking to discharge the attachment under the statute. Was this error? The statute-provides two distinct modes of securing the discharge of an attachment. One is on motion, because of irregularities in the proceedings, or on account of the falsity of the attachment affidavit; the other is by the giving to the plaintiff of an undertaking to pay the judgment. §§ 5009-5011, Comp. Laws.
It is clear that a successful motion to discharge an attachment, culminating in an order to that effect, is the utter annihilation of the proceeding. Everything from the seizure back to and including the false affidavit is swept aside. The language of the statute is that the defendant may move to “discharge the attachment.” The same language is employed in the section providing for the giving of an undertaking by the defendant. Such an undertaking operates to “discharge the attachment.” The same language is employed in the section providing for the giving of an undertaking by the defendant. Such an undertaking operates to discharge the attachment.” These words must have the same construction when used to describe the effect of the giving of such undertaking as when employed in the section relating to motions to dissolve, unless we can see good reason for giving them different interpretations in the different sections. If the only effect of the giving of an undertaking by the defendant was designed to be the release of the particular property seized from the levy, if the writ nevertheless was to remain in its full vigor, why did not this section limit such effect in express terms to a discharge of the lien of
The whole force of this argument depends upon a false assumption. So far from securing his property more speedily by rebonding, the fact is that a motion to dissolve on the ground of the falsity of the affidavit may result in the defendant’s securing a more speedy return of his property than he would by re-bonding. The plaintiff has three days after the execution of such undertaking in which to decide whether he will except to the sufficiency of the sureties. § 5010 Comp. Laws. Luring this time the sheriff has the right to and usually will hold the property. The plaintiff may then except to the sureties, and the defendant can thereafter have them justify, upon not less than five days’ notice. § 5010 Comp. Laws. It is, therefore, always in the power of the plaintiff to prevent the defendant from securing a return of the attached property in less than eight days from the execution of the undertaking. But the defendant may, in a proper case, in a case where he will suffer irreparable damage from the delay, in any case of great hardship, apply to the court to shorten the time in which to move to vacate the writ, and the court will, in the exercise of its discretion, shorten, by an order to show cause, the time in which to make such motion, forcing the plaintiff to sustain his attachment in much less than eight days; and, if it be said that it may require time for the defendant to prepare his papers for such a motion, it is no less true that it may and often will take time for him to secure sureties
It is apparent from these considerations that the argument of hardship has no force in this jurisdiction, on the view of the question most favorable to the appellant. The defendant may always release his property, or prevent its being seized, without waiving his right to assail the truth of the attachment affidavit, or even without subjecting his person to the jurisdiction of the court, where he has not been personally served with process. The substitute bond merely represents the property seized or about to be seized, and in no manner affects the writ itself. Counsel for appellant seems to concede that, under such a state of the law, the court may well hold that the execution of the discharge bond destroys the right to assail the attachment. It is on this ground that he insists that Ferguson v. Glidewell, (Ark.) 2 S. W. Rep. 713, does not overrule the prior cases, but is founded on a change in the law, giving the defendant the right to execute a forthcoming bond to obtain a return of his property, no such bond being authorized when the former decisions were made. In the case of Bates v. Killian, 17 S. C. 553, stress was laid on the clause, to be found also in § 5011, Comp. Laws, providing that in all cases the defendant might move to discharge the attachment as in case of other provisional remedies. From this it is inferred that he was to enjoy this right, not only in all cases, but also at all times and under all circumstances. It is strictly true that the defendant had the right in this case to move to discharge the attachment, but the time to exercise this right has
The earlier Arkansas cases cited (Delano v. Kennedy, 5 Ark. 457; Childress v. Fowler, 9 Ark. 159),are not authorities in support of appellant’s views. When these cases were decided, the attachment proceeding was not, as it is in our own state, merely ancillary to the action. It was a component part of the action itself. - The writ was attacked, not by motion, but by plea in abatement. Under such a system, the hardship of delay was real and not fictitious. Unless he should rebond, the defendant could not secure possession of his property until the issue raised by his plea in abatement could be regularly tried, and determined in his favor. In the subsequent case of Ferguson v. Glidewell, 2 S. W. Rep. 711, the same court, referring to those prior adjudications, thus state the reasons which lay at their foundation, and also the change which had been subsequently wrought: “This court held that the proceeding authorized by these statutes was in its inception a compound proceeding, combining a proceeding in rem with a proceeding in personam, each having a distinct identity, but liable to be transformed at any time before judgment into a proceeding solely in personam, and, as a whole, was founded upon the declaration, bond, affidavit, and writ, in harmonious combination; and that, should this foundation be defective, as it would be in case the affidavit, the bond, or the writ should not be in conformity with the statute, or either should vary, the one from the other, in so much as to disturb the harmony of the whole as one suit, the entire proceedings, if appropriately assailed, would necessarily fail. It fur
But tbe Code has made radical changes in the pleading and practice in tbe courts of this state. Tbe bond and affidavit made by tbe plaintiff to secure an attachment and tbe writ of attachment no longer form a part of tbe original proceedings by wbicb an action at law may be commenced. Under tbe Code, attachment is a provisional remedy, and merely ancillary to tbe action in wbicb it is sued out. Its object, as expressly defined by the Code, is to secure, the satisfaction of such judgment as may be recovered by tbe plaintiff. Tbe bond tbe defendant is authorized to give to dissolve tbe attachment no longer fills tbe place of a bail-bond at common law. It does not bind him to appear and answer to tbe plaintiff’s demand at such time" and ■place as by law he should, as it did under tbe former statutes.
The decision in Lehman v. Berdin, 5 Dill. 340, was simply the adoption of the prior ruling by the state by the federal court, as was indeed its duty. These ridings were sound, as was the decision in Love v. Voorheis, 13 La. Ann. 549, where the statute provided that the giving of the bond should operate not to discharge the attachment, as in this state, but merely release the property from the levy. Bight here lies the fallacy of appellant’s reasoning. He repeatedly asserted that the statute gives him the right to move at any time before judgment. But this provision necessarily presupposes an existing attachment to be assailed and overthrown. The right to strike down the writ by litigation certainly cannot be exercised after the suitorhas voluntarily supplanted the writ as well as the levy by giving the statutory discharge bond. The right to move to discharge the attachment any time before judgment will not warrant the court in reviving the writ which the defendant by rebonding has already discharged. The authorities fully sustain our position. The cases here cited are not all d irectly in point, but they are all in harmony with our views, and some are express authority for our position: Dierolf v. Winterfield, 24 Wis. 143; Wolf v. Cook, 40 Fed. Rep. 438; Austin v. Burgett, 10 Iowa, 302-304; Allerton v. Eldridge, 10 N. W. Rep. 252; Hill v. Harding, 93 Ill. 80; Bunneman v.
It is true that the precise question presented by this appeal was not before that court, but both the decision and the language of the court sustain the holding of the court below in the case at bar. Defendant, having discharged an attachment by rebonding, went into bankruptcy within four months after the time when the attachment was issued. The bankruptcy act under such circumstances destroyed the attachment. In an action on the bond, it was contended that the bond was a mere substitute for the writ, and that, the bankruptcy proceedings having-annihilated the attachment, the bond also was swept away. But the court held that there was no attachment existing after defendant had rebonded upon which the bankruptcy act could exert its force, saying: “There was no attachment lien nor any attachment in force upon which such proceedings could operate, and this fact is conclusive against the defendants.” The same decision was made in Carpenter v. Turrell, 100 Mass. 450, and in Hill v. Harding, 93 Ill. 80. The case in 4 Hill, 598, (in re Faulkner,) was a case of void attachment, because the affidavit on which it was founded was insufficient on its face. Bruce v. Conyers, 54 Ga. 679, belongs to the same class, as is
The Ohio case (Egan v. Lumsden, 2 Disn. 168) cited by appellant does not express the rule in that state. Myers v. Smith, 29 Ohio St. 123. This latex and higher decision supports the respondent’s view. There is, in fact, no authority to support the appellant’s position under the same statute, the strongest case (Bates v. Killian, 17 S. C.553) being a decision of a jurisdiction having no forthcoming bond, and providing no other means by which defendant could secure possession of his property except by giving the bond, the effect of which, it was claimed, was to bar defendant’s right to assail the attachment affidavit. It is on the ground of the absence of the right to give such a bond that the appellant is strenuously insisting upon the hardship of the construction for which respondent contends; and the supreme court of Arkansas in Ferguson v. Glidewell, 2 S. W. Rep. 711, lays considerable stress on the fact that since the last decision in that state the right to give such a bond to secure his property has been conferred upon the defendant by statute. As we regard the statute in our own state, the bond it provides for is still more favorable to the defendant, as it enables him not merely to become the custodian of the property subject to the lien of the attachment, but to release his property from such lien absolutely. This was the construction given the same statute in California. Curiae v. Packard, 29 Cal. 194. This construction does away with the criticism of Chief Justice Cockrill, in Ferguson v. Glidewell, 2 S. W. Rep. 711-718, that the right to give a forthcoming bond was not sufficient to pro