Hoskins v. White

• Decision Date: 30 January 1893
• Citation: 32 P. 163,13 Mont. 70
• Parties: HOSKINS v. WHITE et al.
• Court: Montana Supreme Court

32 P. 163

13 Mont. 70

HOSKINS v. WHITE et al.

Supreme Court of Montana

January 30, 1893

Appeal from district court, Park county; Frank Henry, Judge.

Action by Clarence F. Hoskins against F. A. White and others. Defendants had judgment, and plaintiff appeals. Reversed.

E. P Cadwell, for appellant.

Word Smith & Word, for respondents.

HARWOOD J.

Plaintiff brought this action to recover damages for the alleged wrongful attachment of his goods in a former suit prosecuted against him by respondents F. A. White and J. L. Platt, Jr. To obtain the attachment in the former suit, White and Platt procured and filed the undertaking required by statute executed by D. O'Shea and William O'Connor, as sureties, but such undertaking was not signed by the attaching creditors, White and Platt. In that suit it appears Hoskins prevailed, and the attachment on his goods was dissolved. Now he prosecutes this action against White and Platt, and their sureties, O'Shea and O'Connor, all joined as defendants herein, to recover damage for said wrongful attachment.

The first question presented on this appeal is whether the district court erred in sustaining the demurrer interposed by defendants White and Platt, on the ground that they were improperly joined with O'Shea and O'Connor as defendants in this action. The tendency of the Montana decisions appears to be to the effect that the sureties in such an undertaking, and the principal on whose behalf it was executed, may be proceeded against in the same action for the damage sustained. McIntosh v. Hurst, 6 Mont. 287, 12 P. 647; Pierse v. Miles, 5 Mont. 549, 6 P. 347. See also, Jennings v. Jonier, 1 Cold. 645. It ought to be so held on principle. The subject of the action is the damage committed by the wrongful attachment. The principal and sureties are all liable for one and the same thing, to the amount for which the undertaking provides. If A, in writing, guaranties that B. will pay his own grocery bill, would it be contended that A. and B. could not be sued together in the same action for that debt? Although B. did not sign the guaranty to pay his own debt, both are liable for the bill,--one as primary debtor, and the other as surety or guarantor. Here, in the action at bar. White and Platt and O'Shea and O'Connor are all liable for one and the same damage, committed by the wrongful attachment,--White and Platt primarily, and O'Shea and O'Connor as sureties. The latter have guarantied, as evidenced by the written undertaking, that White and Platt will pay such damages. In Pinney v. Hershfield, 1 Mont. 367, (an action to recover damages for wrongful attachment,) it was held that "a demand on the principal debtor, and a failure on his part to do that which he is bound to do, are requisite to found any claim against the guarantor. 2 Pars. Cont. 29." In the case at bar the condition of the undertaking is that the undersigned sureties, "in consideration of the premises and of the issuing of said attachment, do jointly and severally undertake, in the sum of $1,270, and promise, to the effect that if the defendant recover judgment in said action, or if the attachment be dismissed, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages he may sustain by reason of the attachment." Section 16 of the Code of Civil Procedure provides that "any person may be made defendant who has or claims an interest in the controversy adverse to the plaintiff." Is not the principal who caused the attachment, and whom the sureties guarantied would pay the damage, a party in interest, adverse to the plaintiff? He is bound to reimburse the sureties for whatever they are compelled to pay on his behalf in the premises. The statute provides that where "one or more of the defendants against whom the judgment is to be rendered are principal debtors, and others of the said defendants are sureties of such principal debtor or debtors, the court may order the judgment so to state; and, upon the issuance of an execution upon such judgment, it shall direct the sheriff to make the amount due thereon out of the goods and chattels, lands and tenements, of the principal debtor or debtors, or, if sufficient thereof cannot be found within his county to satisfy the same, then that he levy and make the same out of the property, personal or real, of the judgment debtor who was surety." Comp. St. div. 5, § 1293.

Respondents' counsel contend that there can be no implied parties to the obligation sued on. True enough, but the obligation sued on should not be confounded with the evidence by which defendants became parties to that obligation. The obligation resting upon all these defendants alike, is to compensate for the damage resulting from said wrongful attachment. That damage is the cause of action. The obligation to answer therefor rests upon several parties. White and Platt are primarily bound therefor, because of the obligation imposed by law to answer for a damage directly caused by their unlawful act in suing out the attachment. They are the principal parties, charged therewith by operation of law, because they are the direct authors of the damaging act. But the law, to make sure provision that the damage wrought by the misuse of its process will be compensated, requires that others shall take upon themselves the same obligation, namely, to answer for the damage caused by the wrongful procurement and use of the attachment writ. O'Shea and O'Connor, by their written engagement, took upon themselves the same obligation, and upon this evidence the law lays upon them a judgment for said damage, of course not exceeding the amount of their undertaking; and, if judgment was sought against the sureties for any greater amount than their undertaking, it would be limited thereto. It is eminently proper that all parties bound for this damage should be proceeded against in the same action (Jennings v. Jonier, supra,) if they can be found and served with summons, because plaintiff has a right to judgment against them without prosecuting two actions, although plaintiff, at his option, may proceed against all or part of those liable to answer for the same obligation, (section 20, Code Civil Proc., and section 1296, div. 5, Comp. St.;) and to deny plaintiff's right to have such...