9 Neb. 406 | Neb. | 1879
This is a proceeding in error to reverse the order of the district court for Buffalo county discharging an attachment of personal property.
A preliminary motion is interposed by the defendant in error, to dismiss the case upon two grounds:
1st. Because “ the plaintiff in error has failed to give the undertaking required by an act entitled, An act to provide for the retention of attached property pending a review on error of an Order discharging the attachment,’ ” passed and took effect February 17th, 1873. Gen. Stat., 715.
2d. “ That the original action in which the attachment mentioned in this cause was issued has proceeded to final judgment in favor of said defendant.”
As to the first ground of the motion, it may be answered that we have nothing before us to show that the undertaking required by this very crudely expressed statute was not given. In the first section it is provided that the plaintiff in error “ shall give an undertaking to the adverse party, with surety or sureties to be approved by the court in double the amount of the appraised value of the property attached, conditioned to pay said adverse party all damages sustained by such party in consequence of the filing of said petition in error, in the event that such order of attach
Although it is by no means so clear as it might have been made, it was, we think, • the intention of the legislature to have the undertaking approved by the court whose judgment it is sought to have reversed, and then deposited with the clerk thereof. Be that as it may, however, it is clear that the undertaking, not being necessarily a part of the record of the case, its absence therefrom is of no particular significance, and cannot be taken as proof that it was not in fact given. Of this matter the official certificate of the proper clerk would be the proper evidence. Therefore, as there is no evidence before us that the proper undertaking was not in fact given, it is unnecessary to decide what the result of a failure to give it would be.
As to the second point we answer that, if the order of attachment, having been properly issued, were erroneously dischaz’ged on motion of the. defezzdants, whereby costs were wrongfully visited upon the plaintiff, the error is not cured by the fact of a final judgment being since rendered which would have dissolved the attachment, had it been continued to that time. If it were properly issued, it was the plaintiff’s right to have the attachment stand until final judgment in the action, unless sooner discharged by givingof the undertaking to “perform the judgment of the couz't,” as provided in section 219 of the code of civil procedure. Gen. Stat., 560. While a final judgmezzt in the action, in favor of the defendants, tezminates the proceedings in attachment in their favor, it does not have the effect of curing all previous errors committed by the court or judge, respecting the attached property, prejudicial to the plaintiff. The motion to dismiss the petition in error must therefore be overruled.
Here, however, we have, in addition to a positive denial of the truth of the plaintiff’s affidavit, a very conclusive showing of facts and circumstances establishing its falsity as to all of the statutory grounds for the attachment recited therein.
But the hope of a reversal seems to rest, not so much upon the strength of the plaintiff’s case, as upon what is supposed by counsel to constitute an estoppel of all inquiry concerning the validity of the attachment proceedings prior to the levy of the order. It is claimed here, and was in the court below, that the sheriff, in executing the order of attachment, took from the defendants what is known as a delivery undertaking according to section 206 of the code, “that the property, or the appraised value thereof in money, should be forthcoming to answer the judgment of the court in the actionand that thereupon the goods were left in possession of the persons where found. Gen. Stat.,
But even if these facts were- embodied in the return, as they clearly should have been under section 211 of the code (G-en. Stat., 559), still they could not have the effect contended for by plaintiff’s counsel, for the giving of such an undertaking neither has the effect of dissolving the attachment nor of preventing the defendant from afterwards moving its dissolution, as a moment’s attention to the statute will show. Indeed, one of the provisions of the undertaking is, that the property shall'be forthcoming, to be disposed of in satisfaction of the claim for which the attachment was made. Again, section 229 of the code declares that “ the court may compel the delivery to the sheriff, for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily, on such undertaking, to enforce the delivery of the property,” etc. And section 230 is of similar import. G-en. Stat., 562.'
Speaking of a statute very similar to ours on this subject, the supreme court of Missouri say that, “it
And we think it equally clear that, by giving the undertaking, notwithstanding which, as we have shown, the attached property is liable at any time to be retaken by the sheriff, by order of the court, the defendant did not estop himself from questioning the validity of the seizure. The time within which a motion to discharge the attachment may be filed, seems to co-exist with it, up to the rendition of final judgment in the action. Rudolf v. McDonald, 6 Neb., 168. Thus it is provided in section 235 of the code that: “ The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge the attachment as to the whole or a part of the property attached.” Gen. Stat., 563. And this right may he exercised, whether the property be in the actual possession of the officer or has been released, and is subject to the order of the court u'nder such undertaking in the hands of the defendant, or in the hands of a third person as garnishee. Seney’s Code, 308. Note 1 to sec. 212, Ohio Code.
Such being our views of the questions presented, the order of the district court must he affirmed.
Order aeeirmed.