Lick v. Madden

By the Court, Sanderson, J. : This is an action upon the official bond of the defendant Madden, to recover damages sustained on account of his failure to perform his duty while holding the office of Clerk of the District Court of the Sixth Judicial District, in the matter of issuing a writ of attachment, at the suit of the plaintiff against Lady Adams Company. The case has been here before, and will be found reported in the twenty-fifth volume of the Deports of this Court, at page two hundred and two. It then came up upon a judgment in favor of the defendants, based upon a demurrer to the complaint fin' insufficiency. The gravamen of the action was that the plaintiff, on a day named, filed in the office of defendant Madden a complaint in an action by him against Lady Adams Company, accompanied by an affidavit and an undertaking for an attachment, and demanded a summons and a writ of attachment forthwith. That thereafter, Eggers & Co. also filed a complaint, affidavit and undertaking in an action by them against Lady Adarns Company, and demanded a summons and attachment forthwith. That notwithstanding the prior right of the plaintiff, the defendant Madden issued process in the latter action first, and delivered the same to the attorney of Eggers & Co., whereby Eggers & Co. were enabled to secure a levy upon the property of"Lady Adams Company in advance of the plaintiff, and that, by reason of the premises the plaintiff lost the greater part of his claim. "We then held that it was the official duty of the defendant Madden to have issued the attachments in the order in which they were demanded, and that his failure to do so was actionable under the statute in relation to the duties of County Clerks, (Stats. 1850, p. 262, Sec. 9,) and also at common law, and that the complaint was, therefore, sufficient. We accordingly reversed the judgment and remanded the case with leave to .answer. A trial upon the merits has since been had, resulting in favor of the defendants; and the case now comes [210]here on an appeal from the judgment and an order denying the plaintiff’s motion for a new trial.

The case was tried without a jury, and the Court found that the plaintiff’s action against Lady Adams Company was commenced at twenty minutes before two o’clock v. m. of the 10th of January, 1861, by depositing in the office of the defendant Madden a complaint, affidavit, and undertaking, with a request that a summons and attachment be issued forthwith. That thereupon the plaintiff’s attorney, by whom the complaint, affidavit, and undertaking had been filed, and a summons and attachment demanded, left Madden’s office, and was absent forty-five minutes. That on his return the writs which he bad demanded had been completed, and were immediately thereafter, and without delaying him, placed in his hands. That in the meantime, and while the Clerk was engaged in preparing the plaintiff’s writs, the attorney of Eggers & Co. came into the office and placed in his hands a complaint, affidavit, and undertaking in an action by Eggers & Co. against Lady Adams Company, and also demanded a summons and attachment forthwith. That he (the attorney of Eggers & Co.) was directed to fill out the blanks, and did so. That thereupon the Clerk signed, sealed, and delivered the same at three minutes before two o’clock, and at two o’clock the same were placed by the attorney of Eggers & Co. in the hands of the Sheriff; so that the attachment of Eggers & Co. was issued and placed in the hands of the Sheriff twenty-five minutes before the plaintiff’s attorney returned to the Clerk’s office.