Goodwin & Co. v. Buckley

Department No. 2, Morrison, C. J.: This is an appeal from an order of the late District Court of the Twenty-third Judicial District, made on the 3rd day of September, 1878, denying defendants’ motion to discharge an attachment issued in the above entitled action.

In the transcript is found a stipulation that a complaint in proper form, and sufficient to justify the issuance of an attachment, was duly filed in the action. It also appears from the transcript that an affidavit for an attachment was filed in the case, and that thereupon a writ of attachment was duly issued on the 6th day of July, 1875.

On the 2nd of September, 1878, defendants gave notice of a motion to discharge the attachment, and after hearing said motion, the District Court, on the 3rd day of September, 1878, denied the same, whereupon defendants took an appeal to this Court, and assign as error the refusal of the Court below to dissolve the attachment.

In the notice of motion, defendants assign several grounds, but it is only necessary to notice the fifth, as that was the only ground relied upon on the argument of the appeal. It is as follows:

“ 5th. The undertaking on attachment, filed by and on behalf of the plaintiff, omits and does not contain any covenant, con[296]dition, or obligation to the effect that plaintiff will pay all costs, including reasonable attorney fees, that may be adjudged to the defendants, and all damages which they may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, if the attachment be wrongfully issued.”

The difficulty in this case grows out of two conflicting and contradictory acts of the Legislature, one of which was passed March 24th, 1874, to go into effect July 1st of that year, and the other was passed March 30th, 1874, to go into effect immediately. The undertaking was given under the latter act, and is sufficient if that act was in force at the time. But it is claimed that after July 1st, 1874, the Act of March 24th was in full force and effect, and under that act the undertaking is obviously defective and insufficient. The argument is, that as the Act of March 24th was not to go into effect until July 1st, 1874, the Act of March 30th, which went into effect immediately after its passage, did not repeal it, as it was simply the intention of the Legislature, by the last enactment, to cover the interval between the 30th of March and July 1st, during which the Act of March 24th was suspended.