Gutter v. Joiner

• Decision Date: 06 December 1909
• Citation: 105 P. 457,56 Wash. 202
• Parties: GUTTER v. JOINER et al.
• Court: Washington Supreme Court

105 P. 457

56 Wash. 202

GUTTER v. JOINER et al.

Supreme Court of Washington

December 6, 1909

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Max Gutter against F. L. Joiner and others. Judgment for defendants, and plaintiff appeals. Affirmed.

H. E Foster, for appellant.

Holzheimer Herald & Holzheimer, for respondents.

MOUNT, J.

The appellant brought this action to recover alleged damages upon an attachment bond. The lower court sustained a demurrer to the complaint and dismissed the action. Plaintiff appeals.

It appears from the complaint that the respondent Joiner brought an action for alleged debt against the appellant. In that action a writ of attachment was issued upon the ground that the defendant was a nonresident. After service of the writ the defendant appeared in that action, and, without moving against the attachment gave a redelivery bond and regained possession of the attached property. A judgment was subsequently rendered in that action in favor of the defendant. Thereafter he brought this action. The question is: Does the giving of a redelivery bond in such cases waive the right of action upon the attachment bond? This court in Brady v. Onffroy, 37 Wash. 482, 79 P. 1004, in considering the effect of a redelivery bond under our statute, said: 'The giving of the bond effects the immediate discharge of the attachment, and release of the property, and the bond then becomes a security for any judgment that shall be rendered against the defendant. The cases hold that, when such a bond has been given under a statute requiring an unconditional promise to perform the judgment of the court, the defendant is thereby estopped to raise any question as to the regularity of the attachment.' After citing cases and discussing the provisions of the statute, the opinion concludes: 'Therefore, under our law, a defendant in attachment has the option to first try the question of the regularity of the attachment, or to give the bond. If he elects to give the bond, which under our statute must provide for the performance of the judgment of the court, he thereby gains the advantage of an immediate release of the property and discharge of the attachment. But, in lieu thereof, under the above authorities, the bond stands as security for any judgment that may thereafter be rendered against him in the action, and both he and his surety waive any right to attack the regularity of the attachment.' While the main question in that case was not the same as here, we think the rule there stated is sustained by the authorities cited, to which may be added Bick v. Lang, 15 Ind.App. 503, 44 N.E. 555, Pixley v. Reed, 26 Minn. 80, 1 N.W. 800, and 4 Cyc. 687, and is conclusive of the question in this case.

The judgment is therefore affirmed.

RUDKIN, C.J., and CROW, J., concur.

PARKER J. (dissenting).

I cannot concur in the holding of the majority opinion, to the effect that a defendant in whose favor a judgment has been rendered upon the merits, in an action brought against him to recover an alleged debt wherein the plaintiff has given the usual bond and caused an attachment to be issued and property of the defendant seized thereunder, waives his right to sue upon the attachment bond for...