OPINION
MAXWELL, J.
This
action was brought by the defendant in error against the
plaintiff in error, to recover for a malicious attachment of
property. The answer is a general denial. On the trial of the
cause a jury was waived. The cause "was submitted to the
court upon the petition, answer, and evidence," upon
consideration whereof the court found the issues in favor of
the defendant in error, and rendered judgment in his favor
for the sum of $ 75; and a motion for a new trial having been
overruled, judgment was entered on the finding.
An
elaborate brief has been prepared and filed by the attorney
for the plaintiff in error, in which a number of questions
including the advice of counsel, are discussed and
authorities cited in support of each proposition. The answer
however, being a general denial, the only matter in issue is
the truth of the allegations of the petition. (The A. & N. R. Co. v. Washburn, 5 Neb. 117; Allen v.
Saunders, 6 Neb. 436; B. & M. R. Co. v. Lancaster
county, 7 Neb. 33; Jones v. Seward county, 10
Neb. 154; Maxw. Pl. & Pr., 4 Ed., 128.)
It is
said that the petition does not state a cause of action, and
that is one of the errors relied upon. The petition is as
follows: "The plaintiff complains of the defendant for
that on the 4th day of March, 1886, the said John S. Jones,
defendant, commenced in the Red Willow county district court
an action by attachment against the plaintiff for the
recovery of money damages, alleging in the affidavit
therefor, and as grounds for said attachment, that the
defendant in said action is a non-resident of the state of
Nebraska; that said defendant fraudulently contracted the
debt and incurred the obligation upon which suit was brought.
"The clerk of said court thereupon, by
direction of the said John S. Jones, without requiring the
said John S. Jones to file an undertaking as required by law,
and upon the representation of the said John S. Jones and his
attorney that no undertaking in attachment was required in
such case, issued an order of attachment in words and
figures, appearing in the certified copy of said order of
attachment. * * * Pursuant to the commands of said writ, and
at the request of the defendant in this action, the deputy
sheriff of said county levied upon the following-named goods
and chattels of the plaintiff, to wit: One bay horse, five
years old; one roan horse, five years old; one set double
harness, and one dray wagon.
"Said
goods and chattels so taken by said officer were retained by
him for a long time, to wit, forty days.
"The
plaintiff further alleges that said order of attachment was
wrongfully and maliciously sued out, and no just grounds
existed for issuing the same, and the statements in said
affidavit as grounds therefor, are false and untrue.
"On
the 31st day of March, 1886, said attachment was dissolved by
the consideration of Hon. William Gaslin, judge, and the
property ordered discharged at the costs of the said John S.
Jones.
"At
the time said goods and chattels were levied upon, the
plaintiff herein was engaged in the business of draying and
delivering in the city of McCook, in which business the
plaintiff used said goods and chattels, and by reason of said
wrongful levy, the plaintiff was interrupted and hindered in
his business for a long time, to wit, forty days, and this
plaintiff's business wholly lost to him; that the team of
horses, by reason of standing in the stable without
sufficient exercise, were greatly injured and damaged.
Plaintiff has been put to great expense and trouble in and
about procuring the discharge of said attachment, and has
been compelled to pay out a large sum of money as attorney
fees, and was greatly injured in his
(plaintiff's) credit, by reason of said illegal suing out
of said writ; all in the sum of two hundred dollars damages,
as aforesaid sustained.
"Wherefore
the said plaintiff prays judgment against the said defendant
for the sum of $ 200, his damages as aforesaid sustained, and
costs of this suit."
Sec.
200 of the Code of Civil Procedure, provides that "When
the ground of attachment is, that the defendant is a foreign
corporation, or a non-resident of the state, the order of
attachment may be issued without an undertaking. In all other
cases, the order of attachment shall not be issued by the
clerk until there has been executed in his office, by one or
more sufficient sureties of the plaintiff, to be approved by
the clerk, an undertaking not exceeding double the amount of
the plaintiff's claim, to the effect that the plaintiff
shall pay the defendant all damages which he may sustain by
reason of the attachment, if the order be wrongfully
obtained."
No
undertaking was given in this case as required by the above
section of the code.
Where
any of the grounds for an attachment are other than that the
defendant is a non-resident or a foreign corporation,...
