Golden Valley County, a Municipal Corporation v. Curtin
| Decision Date | 11 March 1925 |
| Court | North Dakota Supreme Court |
Appeal from an order of the District Court of Golden Valley County quashing an attachment, Pugh, J.
Affirmed.
Murtha & Sturgeon and H. L. Halliday, for appellant.
"If an attachment undertaking was invalid where the surety signed his name to the justification, instead of to the undertaking the court had power, on a motion to vacate, to permit the filing of a proper undertaking." Boger v. Cedar Cover Lumber Co. (N.C.) 81 S.E. 784, Ann. Cas. 1917D 116.
Where amendments are expressly authorized by statute some decisions not only hold that the plaintiff may exercise that right on request, but go further and make it the duty of the court to give an opportunity for amendment before quashing the attachment proceedings. Lowry v. Stowe, 7 Port. (Ala.) 483.
"Defective attachment bonds have been held to be amendable in some jurisdictions subsequent to the issuance of the writ in respect to matters not considered to be of a substantial character under authority of statutes authorizing the allowance of amendments to bonds and undertakings generally." Anonymous, 2 Mich. N. P. 118 (lacking one surety); Kidd v. Dougherty, 59 Mich. 240, 26 N.W. 510 (lacking one surety); Adams v. Kellogg, 63 Mich. 105, 29 N.W. 697 (); Bell v. Moran, 25 A.D. 461, 50 N.Y.S. 982 ()
"If the bond given for a writ of attachment is defective, a new bond may be filed, and an objection to the bond does not go to the jurisdiction of the court issuing the writ." Adams v. Kellogg (Mich.) 29 N.W. 697.
Theo. B. Torkelson and Crawford, Cain & Burnett, for respondents.
The proposition is elementary that attachment is a harsh remedy, unknown to the common law, and for that reason mandatory requirements of the statute are jurisdictional, and the failure on the part of the party suing out the warrant to comply with such requirements renders the entire attachment proceeding void, and not subject to amendment. Ireland v. Adair, 12 N.D. 29, 32; Rudolph v. Saunders (Cal.) 43 P. 619; Courtney v. Bank, 154 N.Y. 688, 49 N.E. 54; 4 Cyc. 583, 589.
"The proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed." 12 N.D. 29, 32.
"An undertaking in attachment which is irregularly issued cannot be amended, Tibbet v. Sue, 54 P. 744." Winter v. Pearson (Cal.) 14 P. 304; 3 Enc. Pl. & Pr. 36; L. Lamm Co. v. Peaks (Wis.) 156 N.W. 94.
"A bond without surety cannot support an attachment under a statute requiring a bond with surety." Ford v. Rogers, 46 S.C. L. (12 Rich.) 385.
Plaintiff sues on a depository bond, executed by the First National Bank of Beach, which defendants signed as sureties. Both defendants were non-residents when the action was commenced. In connection with the suit, plaintiff procured an attachment; and service was obtained in the manner provided, in cases of non-resident defendants, by §§ 7428 and 7431, Comp. Laws 1913. Personal service was had within the state of Iowa and due return thereof made.
Plaintiff executed an undertaking for attachment, but without sureties. In due time defendants moved to discharge the writ on the ground that it had been improvidently issued by the clerk, in violation of § 7543, Comp. Laws 1913, which provides that "Before issuing the warrant, the clerk must require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect, etc." Thereafter, and before the trial court decided the motion, the plaintiff asked leave to amend, or to file a new undertaking, executed by sufficient surety, in conformity with the requirements of the statute. After hearing both applications, that of the defendants was granted and the attachment set aside. Plaintiff appeals.
Plaintiff contends that defendant's affidavits, in support of the motion to vacate, show that they have no interest in the property attached and, therefore, may not move to set aside the attachment; that their remedy was to except to the surety, in the manner provided by § 7543, Comp. Laws 1913, and that, having failed to except within ten days on the ground that the surety was insufficient, they lost the right to complain on the ground that no sureties appeared on the bond. It is urged that the court, in the exercise of a sound judicial discretion, should have granted the motion to amend and permitted the county to file an undertaking, with sufficient surety; the court, it is said, has such power under § 7482, Comp. Laws 1913.
Defendant's affidavits tend to show that they hold the title to some, but not all of the land attached, as trustees. The contention that they do not, for this reason, have such an interest in the property as entitles them to move for a dissolution of the attachment, is obviously without merit. Whether owners in their own right or merely as trustees, their right to protect the property against seizure and sale under void judicial process, can be vindicated upon elementary principles. The statute gives the right to move for a discharge to the defendants in the proceeding; and plaintiff alleges that they are the owners of the land. See 6 C. J. 431, et seq. Indeed, appellant wastes no time and but little space in arguing this point.
We think the second branch of plaintiff's contention must likewise fail. Sec. 7543, Comp. Laws 1913, so far as material, is as follows:
This statute clearly contemplates an undertaking with a surety, the sufficiency of which, however, the defendant may challenge. Here we have no undertaking--merely the promise of the plaintiff to pay all damages and costs, in the event of defeat, a duty it probably owes, at least as to the costs, in the instant case without such special agreement. See Great Northern Exp. Co. v. Gulbro, 38 N.D. 352, 165 N.W. 513. There must be an undertaking with some surety on it before the defendant loses any right under § 7543, supra. The time within which defendant must move does not begin to run against him until he is confronted with an undertaking executed by a surety. The defendants have not lost the right to ask that the attachment proceedings be vacated because they did not except within ten days to a surety that does not and never did exist.
This brings us to the third and most serious question in the case--whether the trial court erred in refusing to allow plaintiff to amend the so called undertaking and file, nunc pro tunc, a new one with sufficient sureties.
Sec. 7482, Comp. Laws 1913, relied on by plaintiff as giving the court discretionary power to allow an amendment, is a part of chapter 8, Code of Civil Procedure. It reads as follows:
The plaintiff contends that the refusal of the proffered amendment was an abuse of discretion and is reversible error.
In Hilbish v. Asada, 19 N.D. 684, 125 N.W. 556, this court held that the trial court had the power, by virtue of § 7482, to permit a party to correct a mistake in an attachment affidavit. In that case the clerical error consisted in the use of the word "plaintiff" instead of the word "defendant." Sec. 7561, Comp Laws 1913, does not require that the attachment be dissolved because of a clerical error in the affidavit. It is there provided that if "the affidavit upon which the attachment" was issued be untrue, the proceeding must be...
To continue reading
Request your trial