4 S.D. 469 | S.D. | 1893
This was an action upon an undertaking given under Sections 5009, 5010, Comp. Laws, for the discharge of an attachment. After the giving of the undertaking the defendant in attachment moved for its discharge upon traverse of the attachment affidavit, under Section 5011. Upon the hearing of such motion the judge made an order which, after the usual preliminary recitals, reads as follows: “It is hereby ordered that the attachment in said cause be, and the same is hereby, dissolved and set aside; and it is hereby further ordered that the bond of J. Monk, with Wm. J. Hallock as surety be cancelled and declared void.” No appeal was taken from this order, and it was never vacated or reversed. When the undertaking was given, defendant Monk secured his sureties for so signing; and after the entry of the above order, of which plaintiffs had notice, said sureties returned their security to said Monk. The plaintiffs had judgment in the main action against the defendants therein, and, failing to collect the same, brought this action on such undertaking. Upon these facts, concerning which there seems to be no dispute, the court found as conclusions of law “that by reason of the adjudication made by the court in making and executing the order for the discharge of the attachment in the action of Wyman, Mullin & Co. against J. Monk, and by reason of the failure of said plaintiffs in said cause or their assigns, to appeal from said order, or moving to vacate or set aside the same, the plaintiffs herein are barred from maintaining this action,” and entered judgment against the plaintiffs, from which judgment this appeal is taken. The error assigned is that the facts do not justify the conclusion of law.
In McLaughlin v. Wheeler, 1 S. D. 497, 47 N. W. 816, we held that the effect of giving the undertaking under said Sections 5009 and 5010 was not simply to release the property from the attachment, but that in the language of the statute itself it discharged the attachment. „ It wiped out or annihilated it, and the undertaking was put in its place. Logically, and we think in
As a necessary sequel to these views, the judgmert of the trial court that the facts recited constituted a good defense to plaintiffs’ action on the undertaking, was, in our opinion -wrong. The return to the principal, Monk, by the sureties of the security given them to indemnify them for signing the undertaking may be unfortunate for them; but the plaintiffs were not responsible for and their rights cannot be affected by it. The judgment of the circuit court is reversed, and the cause remanded for a new trial.