Stutzner v. Printz , 43 Neb. 306 ( 1895 )

Irvine, C.

Printz brought an action against Stutzner in the county court of Sarpy county to recover on a note which Printz had signed as surety for Stutzner and had paid. Printz on, the same day filed an affidavit for an attachjnent. Stutzner filed a motion to dissolve the attachment, whereupon Printz moved for a continuance and the cause was continued to February 5, but on February 2 a default was entered against Stutzner and judgment rendered upon the petition. On February 5 the motion to discharge the attachment was overruled. Stutzner prosecuted error to the district court,, assigning in his petition in error errors relating both to the judgment and to the order sustaining the attachment. The cause coming on to be heard in the district court on the petition in error, the following order was made: “This court finds that there was error in the proceedings in the court below, in that the judgment was rendered before the time set for trial. It is, therefore, ordered by the court that the said cause be reversed, to which order of the court the defendant in error excepts and is hereby allowed forty days from the rising of the court to prepare and serve his-bill of exceptions.” Thereafter a petition was filed and the defendant, without pleading to the petition, filed a motion in the district court to dissolve the attachment, setting-up the same grounds as appeared in his motion in the county court. A default was thereafter entered against Stutzner for failure to plead to the petition. A motion to strike from the files the second motion to dissolve the attachment was overruled, but the court refused to hear, in-support of such motion to dissolve, the affidavits which-had been used in the county court and refiled in the district court. It inferentially appears that the court refused to-pass upon the second motion to dissolve upon its merits,, and a judgment was rendered in favor of Printz, followed by an order to pay the proceeds of the sale of the attached property to Printz. It would seem from this that a sale of the attached property had already been had, but by what authority does not appear in the record. From these proceedings Stutzner again prosecutes error to this court.

The first error assigned is in sustaining the motion for a default. It is ^claimed that the entry of a default was erroneous because Stutzner had filed a motion to dissolve the attachment. The effect of this motion will be considered later. Even if the motion had been a proper one, it would not relieve Stutzner from his default. An attachment is an ancillary proceeding. While it requires the pendency of an action to support it, still the determination of the attachment rests upon its own facts and not upon the facts of the action. (Reed v. Maben, 21 Neb., 696.) Notwithstanding, therefore, that an action is aided by attachment and that the defendant has appeared to resist the attachment, he is not thereby excused from filing a pleading to the petition, and if he fail to so plead within the time allowed, his default may be entered against him and the plaintiff may in due course proceed to judgment upon his cause of action. Most of the other assignments of error relate to the action of the court in refusing to entertain the motion to discharge the attachment filed in the district court. A reference to the order deciding the petition, in error in the district court shows that the judgment of the county court was reversed solely because it was prematurely rendered. The district court had, therefore, not ruled upon the petition in error in so far as it related to the order of the county court sustaining the attachment and did not reverse that order. The plaintiff in error was entitled after final judgment in the action to have reviewed on error not only the judgment itself but the order sustaining the attachment. (Walker v. Morse, 33 Neb., 650.) The order reversing the judgment alone for the reasons stated impliedly affirmed the rest of the proceedings, and this, if done without consideration of other assignments, may have been error prejudicial to the plaintiff in error, but he did not except to this order, nor did he in his motion for a new trial in the district court or in his petition in error here assign as error the failure or refusal of the district court to reverse the judgment of the county court sustaining the attachment. The action of the county court in that respect remains, therefore, unreversed and unattached. The proceeding adopted by the plaintiff in error, instead of asking to have reviewed the action of the county court sustaining the attachment, was to file a new motion in the district court, after a reversal of the county court’s judgment, seeking a dissolution of the attachment upon the same grounds as were urged in the county court. In Livingston v. Coe, 4 Neb., 379, it was said that it is a wholesome rule of practice to refuse to enterlain a second motion, where one for the same purpose has been overruled, unless leave to file is specially given, but that where there has been an omission through inadvertence or ignorance of the facts, application should be made for leave to file a new motion to obtain a ruling on such new matter. But the granting of such leave is a matter resting entirely in the discretion of the court to which the application is addressed. The district court, therefore, had a right in its discretion to refuse to entertain a second motion to dissolve the attachment, and we cannot say that there was an abuse of discretion in so refusing, especially as no new grounds were averred.

It is urged that there had been in fact no adjudication in the county court of the attachment, for the reason that the motion to discharge the same was not passed upon until after final judgment. Since this case was submitted it has been held that a motion to discharge must be made before final judgment, but that after judgmént the court may rule upon such motion. (Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb., 520.) The order of the county court sustaining the attachment was, therefore, ooram judice, and not having been reversed, and the refusal of the district court to reverse it not having been excepted to or assigned as error, we must treat the action of the county court as an adjudication of the question and as justifying the district court in refusing to entertain an independent motion for the same purpose.

JUDuMENT AFFIRMED.