Storz v. Finkelstein

• Citation: 50 Neb. 177,69 N.W. 856
• Parties: STORZ ET AL. v. FINKELSTEIN ET AL.
• Decision Date: 07 January 1897
• Court: Supreme Court of Nebraska

50 Neb. 177

69 N.W. 856

STORZ ET AL.

v.FINKELSTEIN ET AL.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1. In an action on an attachment bond, where the answer is a general denial of the averments of the petition, the burden is upon the plaintiff to show that the attachment was wrongfully issued; that is, that the averments in attachment affidavit, as ground for the writ, were untrue. Ryan and Ragan, CC., dissenting.

2. An instruction in such a case which permits the jury to return a verdict for the plaintiff if they find that the attachment was merely dissolved held erroneous. Ryan and Ragan, CC., dissenting.

3. A judgment will not be reversed for errors committed in giving instructions where it is not shown the unsuccessful party could have been prejudiced thereby.

4. An attachment bond is valid without the signature of the attaching plaintiff; and, where he does not sign the bond, he is not liable thereon to defendant in attachment. Ryan and Ragan, CC., dissenting.

On rehearing. Reversed in part, and affirmed in part.

For former opinion, see 66 N. W. 1020, 48 Neb. 27.

NORVAL, J.

Louis M. Finkelstein recovered judgment in the court below against Gottleib Storz, Joseph D. Iler, and Theodore Olsen upon an attachment bond. The defendants jointly and severally prosecuted error to this court, and a judgment of reversal was entered at the last term, the opinion being reported in 48 Neb. 27, and 66 N. W. 1020. A motion for a rehearing, based upon three grounds, was sustained, and the cause again submitted for consideration.

It is urged that the judgment of the lower court should, in any event, be affirmed as to the defendant Olsen. The judgment as to him was reversed for the giving of this instruction: “(1) In order that plaintiff may recover in this action, he must satisfy you by a preponderance of all the evidence--First, that defendants Storz and Iler, in a suit brought by them against him, caused an attachment to be issued and levied on his bottling works; second, that said attachment was dissolved in due course of law; third, as to the amount of damages, if any, suffered by him as a direct result of the issuance and levy of said attachment; fourth, that the attachment bond was duly executed by defendant Olsen.” An examination of the briefs and arguments has failed to convince the writer that this instruction stated the correct rule applicable to the issues made by the pleadings, either as to Olsen or his co-defendants. It will be observed that the suit is upon an attachment undertaking, conditioned in accordance with the provisions of section 200 of the Code of Civil Procedure, “that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained.” There is no possible room for doubt that no liability arises upon such a bond unless the attachment was wrongfully issued, and the burden of establishing that fact is upon the plaintiff. No decision rendered under a statute like our own holds the contrary to be true. The element of the wrongful issuance of the attachment was omitted from the instruction quoted, except it is contained in the second subdivision thereof, namely, “that said attachment was dissolved in due course of law.” In the former opinion it was held that this language was not sufficient to show that the attachment was wrongfully sued out, and that view is evidently sound, inasmuch as the attachment may have been dissolved for mere defects, omissions, or irregularities committed by the officer in issuing the writ. Doubtless, the discharge of an attachment on a finding in favor of the defendant, on an issue as to the truth of the facts alleged as the ground for the writ, is conclusive between the parties in an action on the bond that the writ was wrongfully obtained, unless it has been reversed on error. Hoge v. Norton, 22 Kan. 265; Mitchell v. Mattingly, 1 Metc. (Ky.) 237; Boatwright v. Stewart, 37 Ark. 614. But the instruction under consideration failed to inform the jury that they must find the attachment was discharged for want of sufficient grounds for the obtaining of the writ to justify a recovery on the bond. The effect of the instruction was to withdraw from the consideration of the jury whether the attachment had been wrongfully obtained, and to allow a recovery if they found the writ had been discharged for any cause. The authorities generally hold that an attachment is not wrongfully obtained, unless it is shown that the plaintiff has no meritorious cause of action against the defendant, or, having such a cause of action, the ground stated in the attachment affidavit is untrue. The word “wrongful,” as used in the statute, does not apply to a dissolution of an attachment on account of defects in the form of the proceedings, or for mere omissions, irregularities, or informalities which the officer may have committed in the issuance of the process.

The statute of Florida (1892, § 1646) requiresthe plaintiff in attachment to give a bond, with at least two or more sureties, in double the amount claimed, conditioned “to pay all costs and damages which the defendant may sustain in consequence of improperly suing out said attachment.” The court, in construing the above provision, in Steen v. Ross, 22 Fla. 480, say: “We think the word ‘improperly,’ as used in the statute, has a broader signification than a mere irregularity, and that it is insufficient to allege as a breach of the condition, although in the express words of the bond, that it was improperly issued. The breach should state with distinctness in what its impropriety consisted. It is only improperly issued when the plaintiff has no meritorious cause of action, of that class of actions in which the law authorizes a resort to the remedy against the defendant, or, having such a cause of action, the ground alleged in the affidavit for its issue is untrue, or not one of the grounds enumerated which must exist before it can be obtained. We do not think it was intended to cover a case where the plaintiff had a meritorious cause of action of the class for which an attachment may legally issue, and when the cause for its issuance is one of those specified in the statute, and such cause is true if the attachment was dissolved for some irregularity, or for some technical reason.” The doctrine announced in the foregoing is stated with approval in Drake, Attachm. § 170, and Shinn, Attachm. §§ 183, 187. Sharpe v. Hunter, 16 Ala. 765, was a suit upon an attachment bond, conditioned substantially like the one at bar. The order for attachment was quashed for a defect in the affidavit upon which it issued. The trial court charged the jury that, if they believed the writ of attachment sued out was abated on plea, the plaintiff was entitled to recover his actual damages sustained. The supreme court held this instruction erroneous. Chilton, J., in the course of his opinion, observed: “What is meant by the term ‘wrongful,’ as used in the statute to which this bond conforms? Was it, as is contended by counsel for the defendant in error, designed to apply to defects in the form of the proceedings, on account of which the attachment should be quashed, as well as to the ground upon which it was to be issued? Or was the object of the framers of the act merely to provide a remedy against persons who should resort to this extraordinary remedy to the prejudice of another, without cause or sufficient ground therefor? It is to my mind perfectly clear that the latter construction is the correct one. * * * We think that by the wrongful suing out of the attachment is meant, not the omissions, irregularities, or informalities which the officer issuing the process may have committed in its issuance, but that the party resorted to it without sufficient ground. The case of Kirksey v. Jones, 7 Ala. 622, not only fully sustains this view, but goes quite beyond it. So far as it conforms to this construction of the statute, we fully approve of that decision.” Bank v. Jeffries, 73 Ala. 183, was founded on an attachment bond. The court, on defining the term “wrongful,” say: “The meaning of this is not that the attachment proceedings are faulty, and liable to be abated or quashed. Such defects furnish no grounds for recovery of damages. To be ‘wrongful,’ within the statute, none of the statutory grounds for attachment must exist. Sharpe v. Hunter, 16 Ala. 765; Drake, Attachm. § 170; Durr v. Jackson, 59 Ala. 203. To justify an attachment, there must be a debt, due or to become due, and one of the enumerated statutory grounds for attachment must exist. Lockhart v. Woods, 38 Ala. 631; Durr v. Jackson, supra. If either of these be wanting in fact, no matter how sincerely the attaching creditor may believe it to exist, then the attachment is wrongful. In such case the measure of recovery in a suit on the bond is the actual injury sustained. * * * And in such action the onus rests with the plaintiff to prove the falsity of the affidavit, or, what is the same thing, the nonexistence of the ground on which the attachment was sued out.” In Calhoun v. Hannan, 87 Ala. 277, 6 South. 291, it was ruled that an action could not be maintained on an attachment bond unless the attachment was wrongfully sued out; that is, unless it was issued without the existence of any one of the facts which authorize a resort to the process. In Garretson v. Zacharie, 8 Mart. (N. S.) 481, it was decided that the surety on an attachment bond is not liable when the attaching creditor failed in his cause of action by reason of some irregularity in the proceedings, posterior to the bond. In Pettit v. Mercer, 8 B. Mon. 51, it was decided that the mere failure of the plaintiff in attachment to prosecute his suit to judgment does not constitute a breach of the condition of the bond. To the same effect are Cooper v. Hill's Adm'x, 3 Bush, 219, and Nockles v. Eggspieler, 47 Iowa, 400.

In the first opinion filed...