Withers v. Brittain , 35 Neb. 436 ( 1892 )

Maxwell, Ch. J.

This action was brought by attachment on an undertaking as follows: “We bind ourselves to the defendants (meaning Withers & Kolls, plaintiffs) that the plaintiffs, Brittain, Smith & Co., shall pay to the said defendants the damages, not exceeding $2,500, which they may sustain by reason.of the attachment in this action if the order thereof be wrongfully obtained,” to recover the sum of $2,500 for the wrongful issuing of the attachment. Certain property of the defendants was levied upon, whereupon they made.a motion to dissolve the attachment, “ Because the facts stated in the affidavit are not sufficient to justify the issuing the' same; that the attachment bond mentioned-in the said affidavit was sworn out by plaintiffs on a suit pending in the district court of Hall county, Nebraska, for damages, and not on contract, judgment or decree executed by the defendants Brittain, Smith & Co. and H. J. Palmer; that sáid H. J. Palmer is a resident of Hall county, Nebraska; that the action so pending is one for damages, yet unliquidated, unsettled, and undetermined, and there is no authority in law for the issuing the said writ of attachment against a non-resident of the state or otherwise.” The motion was sustained and the attachment discharged.

The defendants are non-residents of the state and the sole question presented is, Does the cause of action arise upon contract?

Section 198 of the Code provides: “An attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of the state, for any claim other than a debt or demand arising upon contract, judgment, or decree.” An undertaking made in a legal proceeding.is an agreement or contract in a certain contingency to perform certain acts, as if judgment is rendered in favor of the advérse party, to pay the judgment. So if an attachment is issued, an undertaking is given to pay the defendant all damages which he may sustain by .reason of the attachment, if the- order be wrongfully obtained. Here is an agreement to pay the damages if the attachment is dissolved; in effect, that if no sufficient cause existed for issuing the same, the party undertaking will compensate •the one whose property is attached for the damages he may thereby sustain. Now, will any one contend that an action on the undertaking is not upon this agreement. The fact that the damages are unliquidated can make no difference. The contract limits the liability of the obligors to the amount stated in the undertaking, so that in no event can it exceed that sum, but to the extent of the injury a recovery may be had up to that limit.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.