Tessier v. Crowley

• Decision Date: 17 February 1885
• Citation: 17 Neb. 207,22 N.W. 422
• Parties: TESSIER v. CROWLEY.
• Court: Nebraska Supreme Court

17 Neb. 207

22 N.W. 422

TESSIER

v.CROWLEY.

Supreme Court of Nebraska.

Filed February 17, 1885.

Rehearing of case reported. 16 Neb. 369;S. C. 20 N. W. REP. 264.

COBB, C. J., dissents.T. D. & J. E. Cobbey and W. H. Ashly, for plaintiff.

Hazlett & Bates, for defendant.

REESE, J.

A decision was made in this case at the last term of this court. In the opinion, written by Chief Justice COBB, all the questions presented, except one, were passed upon. 20 N. W. REP. 264. The question thus omitted was as to the sufficiency of the attachment undertaking. The undertaking was overlooked, and supposed not to be in the record. Upon a motion for rehearing being filed, the undertaking was found, and a rehearing granted upon the one question presented by the motion to discharge the attachment, for the reason that “no undertaking has been filed as required by law.” The undertaking was signed by the plaintiff below, by his attorneys, and by Colby & Hazlett, as sureties, the signatures being in this form:

“V. A. CROWLEY,

By COLBY & HAZLETT, his Attys.

COLBY & HAZLETT.”

The contention by plaintiff in error is that the undertaking is defective for two reasons:

First, because the surety is a firm, and not an individual. This objection is founded principally upon section 26 of the Civil Code, which requires that a company suing in its partnership name shall give security for costs. It is urged that, as a firm or company, suing in its partnership name, shall give security for costs before it can maintain an action, therefore such firm or company cannot be sufficient sureties upon an attachment bond. We do not think the conclusion necessarily follows. It cannot be claimed that the reason for the law is that companies or partnerships are not responsible, and must, for that reason, give the security required. The evident purpose of the legislature in adopting this provision was that costs should be readily and speedily collected, without the necessity of any further litigation, in order to make a judgment for costs available. An attachment undertaking is for an entirely different purpose; that purpose being to indemnify the attachment defendant against loss or damage growing out of the wrongful suing out of the attachment. If the surety offered is sufficient for this purpose, the object of the law is met. We cannot here inquire whether or not the member of the firm signing the partnership name had authority so to do. That question was not presented to the district court. No proofs upon that proposition were offered, and no such want of authority was shown.

Second, because the undertaking was signed by Colby & Hazlett as sureties, and that they were practicing attorneys. Upon this point plaintiff in error relies upon section 14, p. 73, of the Compiled Statutes, which provides that “no practicing attorney shall be taken as surety on any official bond, or bond in any legal proceedings, in the district in which he may reside.” There is no doubt but that, had the clerk declined to approve the undertaking, he could not have been compelled to do so, even though the sureties offered were amply good, financially, and the surety sufficient to fully indemnify the plaintiff in error against loss or damage. But the sureties were offered, and were acceptable to the approving officer. It is conceded by pla...