Drake v. Sworts

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, J.
• Citation: Drake v. Sworts, 24 Or. 198, 33 P. 563 (Or. 1893)
• Decision Date: 28 June 1893
• Parties: DRAKE v. SWORTS et al.

33 P. 563

24 Or. 198

DRAKE v. SWORTS et al.

Supreme Court of Oregon

June 28, 1893

Appeal from circuit court, Harney county; Morton D. Clifford, Judge.

Action by M.H. Drake against Sworts & Miller, one Wooley, and others, on an undertaking in attachment. From a judgment for plaintiff, defendant Wooley appeals. Affirmed.

T.C. Hyde, for appellant.

C.W Parrish, for respondent.

BEAN J.

This action is brought upon an undertaking for an attachment given in an action at law brought by Sworts &amp Miller against the plaintiff herein. The complaint, in substance, alleges that in pursuance of said undertaking and the affidavit of Sworts & Miller a writ of attachment was issued in said action upon which 31 head of horses, the property of plaintiff, were attached and detained by the sheriff for 47 days, and until the plaintiff gave a redelivery bond, as provided by law; that on a trial of said action before the court and jury the defendant (plaintiff herein) obtained a judgment for the sum of $419.10 as costs and disbursements, which remains unpaid, and for which he demands judgment in this action upon the undertaking. A demurrer to the complaint was overruled, and judgment for want of an answer was rendered against all of the defendants except the defendant Wooley, who answered admitting all the allegations of the complaint except as to the amount of the judgment for costs and as to that it is denied to be for more than $110. A trial before the court without the intervention of a jury resulted in a judgment in favor of the plaintiff for the amount claimed, from which the defendant Wooley appeals.

The defendant contends that the obligors in an undertaking for an attachment, under our statute, are not liable for all costs that may be adjudged to the defendant in the action, but only for such expenses as may have been incurred on account of the attachment. On the other hand, the contention for plaintiff is that he is entitled to recover in an action on the undertaking all costs and disbursements adjudged to him in the original action, whether on account of the action itself or the attachment therein. The liability of the obligors is measured by the conditions of the undertaking, and, as the undertaking in this case by its terms complies with the provisions of section 146 of the Code, the decision of the controversy depends upon the construction of that section, which provides that the plaintiff in an action, before procuring an attachment to issue, shall give an undertaking, with one or more sureties, "to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment if the same be wrongful and without sufficient cause, not exceeding the sum specified in the undertaking." Under this statute there are plainly two obligations assumed by the parties to an undertaking for attachment: (1) That the plaintiff will pay all costs, which, of course, includes disbursements, that may, by the court in which the action is tried, be adjudged to the defendant; and (2) if the attachment is wrongful, and without sufficient cause, to pay such damage as the defendant may sustain by reason of the attachment. These are separate and distinct obligations, independent of each other, the latter of which may happen without the former, and even if the plaintiff should prevail in the action. This, it seems to us, is the plain and obvious meaning of the statute, and so clearly expressed that it cannot be construed so as to limit the obligation to the costs incurred in the attachment. We are aware, of course, that this construction makes the undertaking for an attachment a security for costs in case the defendant prevails in the action, but it was wholly within the power of the legislature to impose such conditions if the plaintiff is to seize the defendant's property upon an attachment, even before a cause of action has been established; and the court is bound to give the statute effect according to its language and evident intent. This is the construction placed upon the statute by Mr. Justice Deady in Ging Gee v. Ah Jim, 7 Fed.Rep. 811, in an able and well-considered opinion, and is the construction given to similar statutes in other states. Greaves v. Newport, 41 Minn. 240, 42 N.W. 1059; Lee v. Homer, 37 Hun, 634, affirmed, 109 N.Y. 630, 15 N.E. 896.

2. It was claimed by the defendant that the complaint in this case is defective because it does not allege that the attachment was wrongful, or without sufficient cause. But this defect if any, was cured by...