Jones v. Fruin

• Court: Nebraska Supreme Court
• Writing for the Court: MAXWELL, J.
• Citation: Jones v. Fruin, 26 Neb. 76, 42 N.W. 283 (Neb. 1889)
• Decision Date: 02 May 1889
• Parties: JOHN S. JONES, PLAINTIFF IN ERROR, v. WILLIAM FRUIN, DEFENDANT IN ERROR

42 N.W. 283

26 Neb. 76

JOHN S. JONES, PLAINTIFF IN ERROR, v. WILLIAM FRUIN, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 2, 1889

ERROR to the district court for Red Willow county. Tried below before GASLIN, J.

AFFIRMED.

J Byron Jennings, for plaintiff in error.

No appearance for defendant in error.

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, an undertaking must be given. No doubt the clerk who issues an attachment in such case without an undertaking, is liable on his bond, but this does not...