43 App. D.C. 334 | D.C. Cir. | 1915
delivered the opinion of the Court:
Section 445 of the Code provides that if the plaintiff, “either at the commencement of the action or pending the same, shall file an affidavit, supported by the testimony of one or more witnesses, showing the grounds of his claim * * * and also stating either, first, that the defendant is a foreign corporation or is not a resident of the District, or has been absent therefrom for at least six months, and has estate or debts owing to said defendant in said District; or, second, that the defendant evades the. service of ordinary process by concealing himself or temporarily withdrawing himself from the District,” etc. The section concludes with a proviso that the plaintiff shall first file in the clerk’s office a sufficient bond in twice the amount of his claim, conditioned to make good to the defendant all interest and damages which he may sustain by reason of the wrongful suing out of the attachment.
The necessary effect of the bond in question was the dissolution of the attachment. It was in no sense a delivery bond. See sec. 454 of the Code. In United States Surety Co. v. American Fruit Product Co. 40 App. D. C. 239, we had under consideration a bond like the one here involved. Mr. Justice Van Orsdel, speaking for the court, observed that the surety’s “only relation to the original suit was through its contract to abide by and perform the judgment that should be rendered against defendant.” He further observed: “An attachment or appeal bond is a contract. Where the surety, by express agreement in the bond, as in this case, agrees to submit to the jurisdiction of the court, and abide by and perform the judgment of the court, it is equivalent to a waiver of process and submission to the jurisdiction of the court.” In Pacific Nat. Bank v. Mixter, 124 U. S. 721, 728, 31 L. ed. 567, 571, 8 Sup. Ct. Rep. 718, it was ruled that the sureties on a bond, given to release goods attached and obligating the parties to pay any final judgment which might be rendered, “are estopped from setting up, as a defense to an action for a breach of its condition, any irregularities in the form of proceeding to obtain an attachment authorized by law which would
At most, the failure of the affidavit preceding the attachment to set forth the fact that the defendant in the attachment proceeding had estate or debts owing to him in this District rendered the attachment voidable, had it been seasonably attacked by the defendant. Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931; W. B. Moses & Sons v. Hayes, 36 App. D. C. 194. Having entered into this contract, the effect of which, as we have already said, was to dissolve the attachment, the surety was thereafter estopped, except upon a showing of fraud, to set up such a defense as is here interposed. The provision that the judgment should be released in the event of the delivery by the surety or the defendant to the marshal of the chattels levied upon and released was unnecessary. Code, sec. 455 [31 Stat. at L. 1261, chap. 854] ; United States Surety Co. v. American Fruit Product Co. supra. Such a provision is ñecessary only where a delivery or forthcoming bond is given.
Judgment affirmed, with costs. Affirmed.