50 S.E. 194 | S.C. | 1905
February 20, 1905. The opinion of the Court was delivered by On October 24th, 1903, a warrant of attachment was issued in the above stated case by the clerk of the Court for Beaufort County against defendant as a non-resident, and under it certain real estate in that county was attached. The undertaking was signed "Christopher Furness and J.H. Welsford, by Thomas Talbird, their attorney in fact;" and attached to the undertaking was a telegram dated October 24th, 190 — as follows: "To Thomas Talbird, Beaufort, S.C. Plaintiffs authorize you to sign undertaking on their behalf. (Signed) W.S. Monteith." W.S. Monteith and Thomas Talbird were attorneys of record for plaintiffs. In August, 1904, the defendant gave notice of a motion to dissolve the attachment upon the ground that said undertaking was not signed by the plaintiffs, nor by any one there unto authorized by them. Judge Klugh dissolved the attachment upon the ground stated, and plaintiffs appeal.
The requirement of the Code, sec. 251, is that the officer, before issuing the warrant of attachment, "Shall require a written undertaking on the part of the plaintiff, with sufficient surety." Three things, therefore, are essential requirements: (1) The undertaking must be in writing, (2) on the part of plaintiffs, (3) with sufficient surety. Bank
v. Stelling,
The question here is whether the second requirement has been met. The case of Bank v. Stelling, shows that an undertaking to be "on the part of plaintiffs" must be signed by the plaintiff or in his name by his authorized agent. The undertaking need not be under seal, and the failure to file the authority to sign the plaintiff's name thereto is not fatal to the judgment. Grollman v. Lipsitz,
The judgment of the Circuit Court is reversed.