Dudley v. Goodrich — 7 Abb. Pr. 26

Majority

p. 26

DUDLEY a. GOODRICH.

Supreme Court, First District;

At Chambers, July, 1858.

Headnote

Undertaking.—Insolvency of Surety.

After property of a defendant, which has been attached, has been discharged, pursuant to sections 240 and 241 of the Code, upon his giving an undertaking with two sureties, the court has no power to require the defendant to procure ' additional sureties, upon the ground that the original sureties have become insolvent.

Motion for additional sureties in an undertaking.

The defendants in this action were non-residents, and the plaintiffs obtained an attachment against their property. The defendants appeared, and on giving the required undertaking, executed by two sureties, that the judgment which might be recovered against the defendant should be paid, obtained a discharge of the attachment, and a return of the property.

Upon affidavits showing that the sureties in the undertaking had subsequently become insolvent, the plaintiffs now moved for an order requiring the defendants to give new security.

Woodbury & Churchill, for the motion.

—I. The court may require the defendants to give new sureties, on the fact being made to appear that either one or both of the defendants’ sureties has become insolvent. (Willett a. Stringer, 15 How. Pr. R., 810; Bridges a. Canfield, 2 Edw. Ch. R., 208.)

The Hartford Quarry Company a. Pendleton (4 Abbotts’ Pr. R., 460), is not in point. The ¡daintiffs there, being a foreign corporation, were obliged to file security for costs in order to acquire the right to maintain the action. Having done so, it was properly held that they could not lose their status in court for the reason that their sureties had become insolvent. Bridges a. Canfield was an ordinary case, where security for costs had been given, and the plaintiffs were required to give new sureties, the former sureties having become insolvent.

II. The insolvency of.either surety is sufficient.to enable the plaintiffs to succeed on the motion. Here both are virtually

p. 27

insolvent. The true test whether or not a new surety should be required is, Could the surety, to whom objection is now made, justify as such if now offered for the first time? The plaintiffs have a right to be placed in the position which they occupied when the action was commenced, and this continues down to the entry of judgment.

III. There are no laches on the part of the plaintiffs. It does not appear that the plaintiffs knew of the insolvency until very recently. The laches of plaintiffs, if any exist, work no injury to defendants. The progress of the action is not affected in any way.

IV. The responsibility of defendants is no answer to the motion. They are non-residents, show no property within this State, and the plaintiffs, in the event of success in the action, would be compelled to collect their judgment by an action thereon in another State.

W. J. A. Fuller, opposed.

—I. There is no provision made by statute, or by rule of court, to compel the defendants to substitute new sureties where the first have become insolvent; and the court has not the power to make such an order, independent of statutes. (4 Abbotts’ Pr. R., 460, The Hartford Quarry Company a. Pendleton.) That case is analogous to the present one. There, a foreign corporation obtained the right to sue, by filing the proper undertaking, and that right was not affected by the subsequent insolvency of the sureties. Here, the defendants obtained a release of the attachment against the property of non-residents by filing the proper undertaking, and,' by a parity of reasoning, they, too, can be in no way affected by the subsequent insolvency of the sureties. The cases cited by plaintiffs’ counsel are not at all in point, except that Willett a. Stringer (15 How. Pr. R., 310) establishes the principle that when, upon an appeal, an undertaking is perfected, the appellant does not remain responsible for the insolvency of his sureties; and, so far, it sustains the theory of the defendants in this action.

II. The question here raised is new and important, never having been judicially determined, and should be decided upon first principles. The original object of an attachment against the property of a non-resident debtor was merely to secure the appearance of the party, that the court might obtain jurisdiction,

p. 28

and was not to secure the alleged debt. ’lis true that the design of the Code was to secure the debt as well as to obtain jurisdiction—probably upon the presumption that a resident judgment debtor would be here to answer with his property— and it does not provide for the release of the property attached upon appearance in the action, except upon giving an undertaking ; but in other States—eveiy where where the common-law rule obtains—as soon as there is an appearance, there is an end of the attachment. The Code thus gives advantage enough to resident suitors, without calling upon the court for further aid in a proceeding like this.

III. If the court should hold that it has the power to order new security, it then becomes a question of judicial discretion in each instance, and the facts of this case are such that the motion, on its own merits, should be denied.

—The undertaking in this case was given on dis charging an attachment against a non-resident defendant. The plaintiff moves for other sureties, on the ground that one of them is insolvent.

It appears to me that this is one of those cases in which the court has no power to order additional sureties. The property has been discharged from the attachment in the mode pointed out by statute. There is no power to issue another attachment, and the court has no control over the property attached.

The reasons stated by me in The Hartford Quarry Company a. Pendleton (4 Ablotts' Pr. R., 460), are applicable to this case.

The same reasons are stated by Mr. Justice Hoffman, in Willett a. Stringer (15 How. Pr. R., 310), as to undertaking on appeals.

Motion denied, defendants’ costs to abide event.