Wilson v. Shepherd , 15 Neb. 15 ( 1883 )

Maxwell, J.

The defendant in error commenced an action against the plaintiff, in the district court of Antelope county, to recover the sum of $1,222.11, and- caused an order of attachment to be issued and levied upon certain property of the plaintiff in error, who afterwards filed a motion to discharge the attachment, which was overruled. The case is not yet determined in the district court, and the sole question for •consideration is the order overruling the motion to discharge the attachment.

The code provides that in case of an order discharging •an attachment, and any party affected thereby shall except thereto, the court or judge shall fix the number of days, not exceeding twenty, in which such party may file his petition in error, during which time the attached property shall be held by the sheriff, the plaintiff in error to give ail undertaking in double the appraised value of the property, ■conditioned to pay the adverse party all damages which he may sustain in case the order discharging the attachment shall be affirmed. Civil Code, § 236e, Comp. Stat., 561.

An order discharging an attachment is a final order, because the attached property is released and the plaintiff may thereby be deprived of a substantial right. Turpin v. Coates, 12 Neb., 321, as a dissolution discharges the lien of the attachment. Watson v. Sullivan, 5 Ohio State, 43. But where the court overrules the motion — in effect holds that the showing made by the defendant is not sufficient to entitle him to a dissolution, the order is not final. It is still subject to review by the court up to the time of rendering final judgment.

The owner of the attached property may have the same released at any time by giving the undertaking required by section 206 of the code, and the giving of such undertaking will not preclude him from afterwards moving to discharge the attachment. Hilton v. Ross, 9 Neb., 406. Some objection is made to the form of the action as being upon a guaranty, bub we are of the opinion that an attachment will lie upon the facts stated in the petition.

There is no error in the record, and the judgment is affirmed.

JUDGMENT AFFIRMED.

The other judges concur.