Poswa v. Brittain

STURTEVANT, J.

This is an appeal from an order discharging an attachment. On February 7, 1934, the plaintiff, as assignee, commenced an action against the defendants to recover a judgment on an open book account. He took out a summons on the same day. When he filed his complaint he also filed an affidavit for attachment against alleged resident defendants. At the same time he delivered to the clerk a purported undertaking on attachment executed by two sureties. The clerk issued a writ of attachment which was served on the same day. The defendants excepted to the sureties. The plaintiff then served a notice that the sureties would justify before the trial court on February 21, 1934. At that time all of the parties attended. Before the examination of the sureties was taken up the attorney for the plaintiff announced that he had another undertaking, the sureties on which were ready to justify if the sureties on the first one could not. The court stated that the hearing of the justification of the original sureties should first be taken up. The hearing so proceeded. The original sureties failed to justify. The defendant asked that the attachment be discharged and claimed that the original undertaking was a fraud on the clerk of the court. As to accepting the new undertaking the court expressed its doubt as to whether it could be accepted “because the attachment issued on the original undertaking and the new undertaking would not secure anything that happened before the writing of it”. However, it was stipulated that the new bond was acceptable if the plaintiff had a right to file it. The latter was a corporate bond dated February 19, 1934, which contained nothing on its face showing that it would relate back to the commencement of the action. The further hearing was continued until February 23, 1934. On that date another corporate undertaking containing an express provision relating back to the commencement of the action was delivered to the judge presiding and the further hearing was continued until February 26, 1934. On that date the court made the order appealed from. The clerk entered the order as based “on the ground of the insufficiency of the bond on

[556]

file”. On March 28, 1934, the court, in the absence of and without notice to the plaintiff, entered a

nunc pro tunc

order that its minutes be so amended as to recite “that the attachment be and the same is hereby dissolved on the ground of fraud upon the clerk of this court. ...”