30 Minn. 366 | Minn. | 1883
It is only the defendant whose property has been attached to whom Gen. St. 1878, c. 66, § 157, gives the right to execute a bond in order to procure a discharge of the attachment. A stranger to the suit, even although he has an interest in the attached property, is not given this right. It follows that the defendant, Childs, in assuming to intervene in the suit between Kling and G-oodman, and to execute a bond without the knowledge or request of Goodman, was an intermeddler, and his acts 'wholly unauthorized. It is wholly immaterial that the obligors upon this voluntary undertaking might have been liable to plaintiff, if he had elected to accept it as security for his claim in lieu of his attachment lien. He was not bound to do so, but was entitled to retain hjs li^n unless discharged" in the manner provided by statute. His legal rights could
The order of the court commissioner discharging the writ of attachment was, however, not void, but merely voidable, and hence, until that order was vacated, plaintiff had no lien upon the land in question. Consequently he was not required, at least as against defendant, to offer or attempt to redeem within the time fixed by statute. There was, therefore, no necessity to allege in his complaint that he attempted or offered to redeem from defendant after his attachment was dissolved.
It is further contended that the complaint should allege plaintiff’s present readiness to redeem, and contain an offer to pay the amount due. Whatever may be the rule of pleading in an ordinary action to redeem, we do not think that these allegations were necessary in the present case. This is an action to restore plaintiff to a right of which he has been unlawfully deprived by the wrongful act of defendant, and the relief sought is that he be placed in statu quo. The complaint states facts showing that plaintiff had the right of redemption, and that he was deprived of it by the wrongful act of the defendant. We think this constitutes a cause of action, and shows the party entitled to the relief sought. We are, therefore, of opinion that the demurrer to the complaint was properly overruled.
Order affirmed,