13 Mont. 70 | Mont. | 1893
Plaintiff brought this action to recover damages for the alleged wrongful attachment of his goods in a former suit prosecuted against him by respondents, E. A. White and J. L. Platt, Jr. To obtain the attachment in the former suit, White and Platt procured and filed the undertaking required by statute, executed by D. O’Shea and William O’Connor, as sureties, but such undertaking was not signed by the attaching creditors, White and Platt. In that suit it appears Hoskins prevailed, and the attachment on his goods was dissolved. Now he prosecutes this action against White and Platt, and their sureties, O’Shea and O’Connor, all joined as defendants herein, to recover damages for said wrongful attachment.
The first question presented on this appeal is whether the ■district court erred in sustaining the demurrer interposed by defendants White aud Platt, on the ground that they were
In Pinney v. Hershfield, 1 Mont. 367 (an action to recover damages for wrongful attachment), it was held that “a demand on the principal debtor, and a failure on his part to do that which he is bound to do, are requisite to found any claim against the guai’antor. (2 Parsons on Contracts, 29.)” In the case at bar the condition of the undertaking is that the undersigned sureties, “in consideration of the premises and of the issuing of said attachment, do jointly and severally undertake,, in the sum of twelve hundred and seventy dollars, and promise, to the effect that if the defendant recover judgment in said action, or if the attachment be dismissed, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages he may sustain by reason of the attachment.” Section. 16 of the Code of Civil Procedure provides that “any person may be made defendant who has or claims an interest in the controversy adverse to the plaintiff.” Is not the principal who-caused the attachment, and whom the sureties guaranteed would
Respondents’ counsel contend that there can be no implied parties to the obligation sued on. True enough, but the obligation sued on should not be confounded with the evideuce by which defendants became parties to that obligation. The obligation, resting upon all these defendants alike, is to compensate for the damage resulting from said wrongful attachment. That damage is the cause of action. The obligation to answer therefor rests upon several parties. White and Platt are primarily bound therefor, because of the obligation imposed by law to answer for a damage directly caused by their unlawful act in suing out the attachment. They are the principal parties, charged therewith by operation of law, because they are the direct authors of the damaging act. But the law, to make sure provision that the damage wrought by the misuse of its process will be compensated, requires that others shall take upon themselves the same obligation, namely, to answer for the damage caused, by the wrongful procurement and use of the attachment writ. O’Shea and O’Connor, by their written engagement, took upon themselves the same obligation, and upon this evidence the law lays upon them a judgment for said damage, of course not exceeding the amount of their undertaking; and, if judgment was sought against the sureties for any greater amount than their undertaking, it would be limited thereto. It is eminently proper that all parties bound for this damage
The second proposition to be considered arose in this wise: After demurrer on behalf of White and Platt was sustained, the action was proceeded with against said sureties O’Shea and O’Connor. It appears that upon the trial the evidence disclosed the fact that the plaintiff was a minor, then of the age of nineteen years. Thereupon evidence was also introduced to show “that plaintiff was emancipated, and given his time, by his father and mother, in the month of March, 1889, and was released by them from any responsibility to them as their son, by reason of his being under the age of twenty-one years;” that during all times stated in the complaint, “and at the present time, plaintiff was acting and doing business as a man of the age of twenty-one years; that neither of his parents have or claim any right, title, or interest in his property or his earnings, as his parents, since, or at any time since, the month of March, 1889.” At the close of the introduction of evidence on behalf of plaintiff, he asked leave of court to amend his complaint “to conform to the evidence introduced;” and, having obtained such leave, filed his complaint as amended, setting forth the facts above stated in relation to his minority and alleged emancipation by his parents. Defendants O’Shea and O’Connor thereupon interposed a demurrer to said last amended complaint, on the ground “that it appears upon the face of said amended complaint that plaintiff has no legal capacity to sue or maintain this action.” This demurrer was sustained by the court, and that order is assigned as error. The principles involved herein were elaborately discussed by De Wolfe, J., and. the same conclusions reached in Wibaux v. Grinnell Live Stock Co., 9 Mont. 154.
The terms of our statute seem to contemplate that a minor may come into court with his action; and, it appearing that he is a minor, the court will, on suggestion of that fact, clothe him with capacity to prosecute his action by the appointment of a guardian, and allow amendment of his complaint by inserting the name of such guardian (Code Civ. Proc. §§ 9, 10, 116), and from the authorities swpra this would appear to be the proper practice in such a case as this. The language of sections 9 and 10 of our Code of Civil Procedure is as follows: “When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action was prosecuted, or by a judge thereof, or a probate judge.” (Sec. 9.) “The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or, if under that age, upon the application of a relative or friend of the infant. 2. When the infant is de
While the question of emancipation would be a relevant inquiry if the controversy related to the right of plaintiff to property or earnings, as between himself and parents or others, we do not think emancipation by the parent would clothe the minor with capacity to sue, especially in view of our statute in that regard. In Person v. Chase, 37 Vt. 647; 88 Am. Dec. 630, the court (per Kellogg, J.) said: “The emancipation of the infant by his father did not enlarge or affect his capacity to make a contract, and its only effect was to release him from his father’s control, and to give him a right, as against his father, to his earnings. (Taunton v. Plymouth, 15 Mass. 203 ; Vent v. Osgood, 19 Pick. 572.)” The judgment must be reversed, and the cause remanded, with direction to overrule demurrers, and allow plaintiff to proceed according to the views herein set forth; and it will be so ordered.
Reversed.