Wyman v. Hallock

Citations

• 4 S.D. 469
• 57 N.W. 197
• 1893 S.D. LEXIS 91

Syllabus

<p>1. The giving of a proper undertaking under Sections 5009, 5010, Comp. Laws, discharges the attachment.</p> <p>2. Whether, such undertaking having been given, a subsequent order of the court or judge, in terms discharging the attachment, made upon motion and affidavits under Section 5011 is void, or only erroneous and voidable — quasre.</p> <p>3. Upon such subsequent motion to discharge the attachment only, it being allowed, the further order of the judge that the undertaking be can-celled is not binding on the parties, that question not being submitted to the judge, unless the necessary and legal effect of discharging the attachment must be to cancel and avoid the undertaking.</p> <p>4. The legal effect of such order discharging the attachment, treating it as valid until reversed, was not to cancel or destroy the undertaking, so that the question of the cancellation of the undertaking was neither expressly nor impliedly submitted to the judge, and his order thereon was not res judicata.</p> <p>5. In an action on such an undertaking it is no defense that the attachment ought not have been issued, or that a judge subsequently made an order discharging it.</p> <p>(Syllabus by the court.</p>