Tessier v. Crowley
| Decision Date | 17 February 1885 |
| Citation | 22 N.W. 422,17 Neb. 207 |
| Parties | LEWIS TESSIER, PLAINTIFF IN ERROR, v. A. CROWLEY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
REHEARING of case reported 16 Neb. 369.
AFFIRMED.
T. D Cobbey, W. H. Ashby, and J. E. Cobbey, for plaintiff in error.
Hazlett & Bates, for defendant in error.
A decision was made in this cause at the last term of this court. In the opinion written by Chief Justice Cobb all the questions presented, except one, were passed upon. 16 Neb. 369. S. C., 20 N.W. 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:
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 twenty-six 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 must give security for costs before it can maintain an action therefore such firm or company cannot be sufficient sureties upon attachment bond. We do not think this 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 the 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, chap. 10, of the Compiled Statutes, which provides that "no practicing attorney shall be taken as surety on any official bond or bonds 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 plaintiff in error that an attorney cannot plead his own wrong and thus avoid his liability; that if he signs such an undertaking in the face of the law he is bound thereby, but might be proceeded against for contempt and punished therefor. We admit that the acceptance...
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