13 Nev. 296 | Nev. | 1878
By the Court,
The statement shows that this case was submitted to the district court upon agreed facts. Plaintiffs had judgment, and the defendants appeal therefrom on the sole ground that it is not supported by the facts as agreed upon.
The respondents present two objections to any consideration of the points relied on by the appellants. It is said: 1. There was no motion for a new trial, and it' is now too late to claim that the decision is contrary to the evidence; 2. It cannot be objected that the findings of the district judge fail to support the judgment because the findings are not made part of the statement and consequently are no part of the record before us.
In answer to the first objection it is enough to say that the appellants are not claiming that any fact was found against the evidence. The statement, as well as the recitals in the judgment, shows that there was no trial of any issue of fact; the facts were settled by stipulation in writing between the parties and no evidence was introduced.
As to the second objection, it does not appear that any findings of fact were filed. The recital in the judgment is that the court after deliberation delivered its finding and decision in writing, but this does mot necessarily imply that
Coming to the merits of the case, the facts are as follows: July 5, 1876, Laveaga & Hawley, the plaintiffs in this action, had a suit pending against the Jersey Mining and Smelting Company, and caused an attachment to issue therein. July 7 the company appeared in the action and applied for a discharge of the attachment, which had already been levied on all or nearly all of its property. The defendants in this action, not knowing that the writ had been executed, and for the sole object and purpose of preventing a levy, delivered to the plaintiffs the following undertaking :
“In District Court, Fourth Judicial District, Nevada—Laveaga & Hawley v. The Jersey Mining and Smelting Company.—Whereas, the above-named plaintiffs have commenced an action in the aforesaid court against the above-named defendant; * * * and, whereas, an attachment has been issued, directed to Bichará Nash, * * * whereby he is commanded to attach and safely keep all the property of said defendant within his custody, not exempt from execution, * * * unless the defendant give him security, by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy said demand, besides costs, in which case to take such undertaking; and, whereas, the said defendant is desirous of giving the undertaking mentioned in said writ.
“Now, therefore, we, the undersigned, residents of the County of Humboldt, State of Nevada, in consideration of the premises and to prevent the levy of said attachment, do hereby jointly and severally undertake, in the sum of two thousand five hundred dollars, gold coin of the United States, and promise to the effect that if the said plaintiffs*300 shall recover judgment in said action we will pay the sa'id plaintiffs, upon demand, the amount of said judgment, together with costs, not to exceed in all the sum of two thousand five hundred dollars, gold coin of the United States.
“ALEXANDER WISE,
“ Dated July 7, 1876. N. LEYY.”
Thereupon the attachment was discharged, and on July 11, four days later, the property that had been attached was released by the sheriff.
Afterward the plaintiffs recovered judgment, no part of which has been paid, although demanded of the defendant, wherefore this suit is brought.
The defendants plead a total failure of consideration. They say, and the fact is admitted, that the sole object of their undertaking was to prevent a levy of the writ, and that they would never have made or signed or executed said undertaking if they had known that the writ had been or would be executed.
If they had contracted in consideration of a discharge of the attachment and a release of the property attached, it would have been no answ'er to the plaintiffs, after a release of the property, to say that they meant something else. But nothing can be plainer than the terms of the undertaking as to the consideration upon which they agreed to become bound for the debt of another. It recites that the defendant “is desirous of giving the undertaking mentioned in said writ,” and it is “in consideration of the premises and to prevent the levy of said attachment,” that they promise to pay any judgment that may be recovered by the plain tiffs. That consideration has totally failed. The attachment, it is true, was discharged, and the property was afterward released, but that wras not what these sureties bargained fox’, and it was nota benefit accepted by them. It does not follow ‘that a man who is willing to give a bond to prevent the levy of an attachment wall be equally willing to give a bond to obtain the discharge of an attachment. The levy of the writ may make all the difference in the world in the solvency of the attachment debtor; it may break up his business; it may set other creditors in motion, and multiply costs and expenses indefinitely. In this case it is a con
Judgment reversed.