Burnham-Munger-Root Dry Goods Co. v. Strahl

• Decision Date: 01 February 1918
• Docket Number: 19857
• Citation: 166 N.W. 266,102 Neb. 142
• Parties: BURNHAM-MUNGER-ROOT DRY GOODS COMPANY, APPELLEE, v. E. J. STRAHL, APPELLANT
• Court: Nebraska Supreme Court

166 N.W. 266

102 Neb. 142

BURNHAM-MUNGER-ROOT DRY GOODS COMPANY, APPELLEE, v. E. J. STRAHL, APPELLANT

No. 19857

Supreme Court of Nebraska

February 1, 1918

APPEAL from the district court for Pierce county: ANDREW R. OLESON JUDGE. Affirmed.

AFFIRMED.

Fradenburg Van Orsdel & Matthews, A. G. Cole and M. H. Leamy, for appellant.

Fred H Free, contra.

LETTON, J. HAMER, J., DEAN, J., dissenting. SEDGWICK, J., not sitting.

OPINION

LETTON, J.

This was an action for the recovery of money. A writ of attachment was issued and levied upon a stock of goods belonging to defendant. A few days afterwards defendant executed a bond with sureties, in which they "do hereby undertake to plaintiff in the sum of $ 5,177.54 that the defendant shall perform the judgment of the court in this action and pay the judgment and costs rendered against him." Afterwards defendant moved to dissolve the attachment on the ground that the affidavit was insufficient and that it was false and untrue. Plaintiff then moved to strike this motion from the files upon the grounds that the defendant is estopped from moving the dissolution of the attachment at this time by electing to discharge the attachment by giving the bond mentioned, instead of giving a forthcoming or redelivery bond, and that the attachment had already been wholly discharged by the act of the defendant and by operation of law. The motion to strike the motion to dissolve was sustained, and after a trial, judgment was rendered for plaintiff.

The only question presented is whether the court erred in refusing to consider the motion to dissolve the attachment after the giving of the bond to discharge the same. The statutes of Nebraska provide two methods by which the debtor may regain possession of property attached without a hearing upon the validity of the attachment. Section 7740, Rev. St. 1913, provides, in substance, that the sheriff shall deliver the property attached to the person in whose possession it was found upon the execution by such person in the presence of the sheriff of an undertaking to plaintiff "that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action." This is usually known as a "redelivery" or "forthcoming" bond. In Dewey & Stone v. Kavanaugh, 45 Neb. 233, 63 N.W. 396, it was held that the defendant may move to dissolve the attachment after a forthcoming or redelivery bond is given. This seems to be the general rule in all courts whenever a bond of this nature is given. The other manner of procuring the property is provided for by section 7753, Rev. St. 1913. This provides: "If the defendant, or any other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties resident in the county, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action for any property of the defendant in his hands." The next section provides that in vacation the undertaking may be executed in the presence of the sheriff having the order of attachment, and the sureties be approved by him.

The appellant contends that the same right to contest the validity of the attachment exists after the giving of a discharge bond as in the case of a forthcoming bond. There is a decided conflict in the decisions. A full statement of the principles involved and a list of cases may be found in 6 C J. 338, and it is said: "The decided weight of authority is in support of the view that the giving of such a bond operates as a waiver on the part of the attachment defendant to move for a dissolution of the attachment thereafter." The question is discussed at length in Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, and the cases examined. In the recent case of Moffitt v. Garrett, 23 Okla. 398, 100 P. 533, it is held, under a statute word for word the same as section 7753, that an obligor in such a bond "is absolutely liable in an action against him on the bond for the amount recovered in the action in which the bond was given, without reference to the question whether the attachment was rightfully or wrongfully issued, and the defendant is precluded by such bond from controverting the grounds of the attachment." A large number of decisions are set forth in the opinion, and it is said that, while there are a few authorities which appear to support a contrary view, the overwhelming weight of authority seems to support the view announced by that court. There is a monographic note to this case in 32 L.R.A. N.S. 401. It appears that in Edwards Co. v. Goldstein, 80 Ohio St. 303, 88 N.E. 877, the supreme court of Ohio, construing provisions of the Ohio Code identical with the provisions of sections 7753, 7769, Rev. St. 1913, hold that the latter provisions apply to all cases in which bonds have been given, and...