Brown v. Tidrick

Citations

• 14 S.D. 249
• 85 N.W. 185
• 1901 S.D. LEXIS 4

Syllabus

<p>1. Under Comp. Laws, § 4996, relative to attachment, providing that “before issuing the warrant the clerk must require a written undertaking on the part of the plaintiff * * * to the effect that if the defendant recover judgment, or the attachment be set aside, * * * the plaintiff will pay all costs * * * and all damages,” the undertaking goes along with the action as continuing security, though the cause of action is assigned, and the assignee substituted as plaintiff.</p> <p>2. The word “costs,” in Comp. Laws, § 4996, providing for an undertaking in attachment, conditioned “if the defendant recover judgment * * the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment,” is not qualified by the words “by reason of the attachment.”</p> <p>3. Where, after the giving of an undertaking, by plaintiff, in attachment, the cause of action is assigned, and the assignee substituted as plain'tiff, it is not necessary that the defendant, before proceeding against the surety on the undertaking for the costs, attempt to collect them from the original plaintiff, the assignee having, by his substitution as plaintiff, become primarily liable therefor.</p> <p>4. In support of a judgment for plaintiff on an undertaking in attachment, it being alleged in the complaint that application was made for a warrant of attachment, and that such warrant issued, it will be presumed that proper affidavit was filed with the clerk, as he could not legally issue the warrant till an affidavit was filed, and the presumption is that every public officer has done his duty.</p> <p>5. Defendants in an action on an undertaking in attachment cannot question the regularity of the attachment.</p> <p>6. The complaint in an action on an undertaking in attachment need not set out the proceedings in the attachment.</p>