This action was brought upon an attachment bond by Louis M. Finklestein against Gottlieb Storz and Joseph D. Her, as principals, and Theodore Olsen, as surety upon said bond, to recover damages for the alleged wrongful suing out of a writ of attachment and levying it upon certain personal property of the plaintiff. The petition contains the usual averments. Storz & Iler, in their answer, admit the bringing of the attachment suit',
The first error assigned is based upon the ruling of the trial court permitting the plaintiff to file a reply to the answer of Storz- & Iler after the jury had been sworn. The matter of granting or refusing permission to answer pleadings, or to file pleadings out of time, or during the trial, rests largely in the legal discretion of the trial court, and this court will not interfere with a ruling in that regard, unless there has been an abuse of discretion. This is the settled law of this state. (Hale v. Wigton, 20 Neb., 83; Brown v. Rogers, 20 Neb., 547; Ward v. Parlin,. 30 Neb., 376; Blair v. West Point Mfg. Co., 7 Neb., 147.) The discretion of the court below was not improperly exercised in allowing the reply to be filed. Immediately
The next contention is that error was committed in overruling the demurrer to the second paragraph of the reply, which is as follows: “But said plaintiff avers that upon the dates from July 1 to July 9, inclusive; and in the meantime said plaintiff had no license for the sale of malt or spirituous liquors; that such fact was well and fully known to said defendants, and that it was further known and understood between said parties, plaintiff and defendants, that such beer was purchased from said defendants by said plaintiff for the purpose of being bottled and resold by plaintiff; and plaintiff avers by reason of such knowledge and such understanding and such fact such sale was illegal and void, and no recovery thereon may be had by said defendants against said plaintiff. And plaintiff further says defendants entered into a written agreement, a copy of which is hereto attached and made a part hereof, whereby said defendants were to participate and profit in said illegal traffic, and did so participate and profit therein.” The answer discloses that the account therein pleaded as a set-off, except as to three items, is for beer sold and delivered to the plaintiff between June 30, 1889, and July 10 of the same year. The defendants insist that the facts set up in the reply are insufficient to defeat a recovery for the purchase price of the beer sold between said dates, and numerous authorities are cited in the brief to the effect that the mere knowledge of the vendor that the vendee intended to put the liquors to an unlawful use, or to resell them in violation of the law, is not sufficient to render the sale void or defeat an action brought by such vendor against the vendee to recover the purchase price of such liquors. We do not question the soundness of the adjudications to which the defendants have called our attention. Clearly they are not applicable to the facts before us.
It is contended that this action cannot be maintained against Storz & Her, for tbe reason they did not sign or execute tbe attachment undertaking. It is a fact that their names are not attached to said instrument, nor did they in any manner execute tbe same. Storz & Her having procured tbe undertaking to be given, they thereby became liable to their surety for any and all damages be might be compelled to pay by reason of tbe wrongful suing out of tbe attachment; but it does not follow that they are parties to tbe instrument in such a sense that they are directly liable to tbe attaching defendant in a suit upon tbe undertaking. Tbe statute does not require tbe attaching creditor to sign tbe attachment bond. It is sufficient if it be signed by tbe surety alone. (Code, sec. 200; Eckman v. Hammond, 27 Neb., 611; Howard v. Manderfield, 31 Minn., 337; Black Hills Mining Co. v. Gardiner, 58 N.W.Rep. [S. Dak.], 557; Pierce v. Miles, 5 Mont., 549.) Should judgment be recovered on this bond against Olsen, tbe surety, and be should pay it, doubtless be could sue Storz & Her and recover from them tbe amount thus paid; but that is no reason why tbe latter are directly liable to tbe plaintiff on tbe bond. They may be, and doubtless are, liable for any damages that tbe plaintiff may have sustained if they caused bis property to be attached maliciously and without probable cause. But such remedy of tbe plaintiff is not upon tbe bond,
Error is assigned for the giving of the following instruction :
“1. Ia order that the plaintiff may recover in this action, he must satisfy you by a preponderance of all the evidence (1) that defendants Storz & Her in a suit brought by them against him caused an attachment to be issued and levied on his bottling works; (2) that said attachment was dissolved in due course of law; (3) as to the amount of damages, if any, suffered by him as a direct result of the issuance and levy of said attachment; (4) that the attachment bond was duly executed by defendant Olsen.”
Section 200 of the Code of Civil Procedure provides: “When the ground of attachment is, that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an under
It is argued that the evidence is insufficient to sustain the verdict, in two particulars: First, it was not established that the defendant Olsen executed the bond, and second, the record fails to disclose that the attachment was wrongfully issued. The answer of Olsen having put in issue the execution of the bond, it devolved upon the plaintiff to° establish such fact. (Donovan v. Fowler, 17 Neb., 247; Hassett v. Curtis, 20 Neb., 162.) The evidence incorporated in the bill of exceptions fails to show that Olsen signed the instrument. While it is true there is. attached to the bond a certificate of approval of the county judge who issued the attachment, any presump
Was the attachment resorted to without sufficient grou nds ? While the petition alleges that the attachment Avas Avrongfully obtained, yet this averment was put in issue by the answer. The burden was therefore upon the plaintiff to establish that the writ was wrongfully issued. The transcript of the county judge’s docket shows that the attachment was dissolved, but upon what ground or grounds is not disclosed. The motion to discharge was not introduced in evidence, hence we do not know the grounds upon which the dissolution of the attachment was asked. If the decision urns predicated upon omissions or irregularities merely, in the granting of the writ, that would not justify an action on the bond. On the
For the errors indicated the judgment must be reversed, and the cause remanded for further proceedings.
Reversed and demanded.