
    R. W. Cole, Appellant, v. J. E. Smith, Appellee.
    Attachment: writ wrongfully issued: damages: delivery bond: release of property after verdiot. Where in an action aided by attachment a levy was made upon certain personal property, for the release of which the defendant gave a delivery bond conditioned for the delivery of said property, or its estimated value, to satisfy any judgment that might be rendered against the defendant in said action, and upon the trial of said cause thff jury found specially that the defendant was entitled to recover upon his counterclaim for damages, for the wrongful suing out of said attachment in a sum named, but returned a general verdict in favor of the plaintiff for the amount of his claim less the amount of damages found for' the defendant, held that the plaintiff was entitled to have the attached property subjected to the payment of his judgment, and that its release by the court upon the motion of the defendant upon the ground that the attachment had been wrongfully sued out was erroneous.
    
      Appeal from Lyon District Court. — Hon. George W. Wakefield, Judge.
    Thursday, October 22, 1891.
    This is an appeal by the plaintiff from an order-dissolving an attachment, and releasing certain attached property. The facts appear in the opinion.
    
    Reversed.
    
      ~E. C. Roach and Van . Wag man & McMillan, for appellant.
    
      J. M. Parsons and P. C. Shannon, for appellee.
   Rothrock. J.

The action is at law to recover the-sum of five hundred and-sixty dollars for certain cord-wood sold by the plaintiff to the defendant. An attachment was issued upon the alleged ground that the defendant was about to dispose of his property with intent to defraud his creditors. The defendant answered by admitting the purchase of the wood, but alleging that the indebtedness therefor had been paid. He also set up a counterclaim, in which he averred that the attachment was wrongfully and maliciously sued out, and demanded a judgment against the plaintiff for actual and exemplary damages. There was a trial by jury, and a verdict in which .it was found specially that the defense of payment was not established by the evidence, and that the defendant was entitled to actual damages upon his counterclaim in the sum of one hundred and ten dollars, but that he was not entitled to exemplary damages. A general verdict was also returned, in which it was found that the plaintiff was entitled to recover the sum of four hundred and sixty-six dollars and eleven cents, which was the balance due the plaintiff for the wood after deducting the damages allowed the defendant on the counterclaim. When the attachment was sued out it was levied on' certain personal property of the defendant. In a few days after the levy of the writ of attachment the defendant gave the sheriff a delivery bond, and the attached property was released and delivered to the defendant. The condition of the bond is in these words: “Now, therefore, if the said J. E. Smith shall deliver said property, or its estimated value, as aforesaid, to said sheriff, to satisfy any judgment that may be rendered against said defendant in said suit within twenty days after the rendition thereof, then this obligation to be void, otherwise to remain in full force and virtue.” Upon the return of the verdict of the jury the defendant filed amotion in these words: “Now comes the defendant and shows the court that the jury have found that the attachment in this case was wrongfully sued out. He, therefore, moves the court to discharge the attached property.” The motion was sustained, and an order made dissolving the attachment and discharging the attached property. The correctness of this order is the only question presented by the appeal.

It will be observed that by deducting the damages found for the defendant from the amount found for the plaintiff all the damages of every kind to which the defendant is entitled are fully satisfied and paid. The plaintiff has paid the penalty for his wrongful act in seizing the property. The question is, must he not only pay the damages, but must he release his claim upon the property for the satisfaction of his judgment? The remedy by attachment is purely statutory, and the question must be determined under the provisions of the attachment law of this state. The condition of the' delivery bond given by the defendant in this case is in; compliance with section 2996 of the Code, which requires an undertaking that the “property, or its esti-, mated value, shall be delivered to the sheriff to satisfy any judgment which may be obtained against the defendant in that suit.” Section 2998 provides that it ‘ ‘shall be a sufficient defense that the property, for the delivery of which the bond is given, did not belong to the defendant, against whom the attachment was issued, or was exempt from seizure under such attachment.” These are the defenses which the law designates. There is no other provision of the statute in any manner limiting the absolute requirement of section 2996 that the property, or its value, shall be-delivered to the sheriff to satisfy any judgment which may be obtained in the action. This right of the plaintiff to resort to the bond in payment of his judgment is not made dependent on the amount of the judgment. It is true that under section 3018 a motion may be made to discharge the attachment at any time before trial for insufficiency of statement of cause thereof, or other cause apparent of record. But that section ip not applicable to the question under consideration. This motion comes after trial, and is not an attack upon the record for any informality of statement or the like. It is an objection to maintaining the attachment made after a trial, and when there remains nothing to be done but pronounce judgment. Section 3017 provides that the defendant cannot contest the fact stated as a cause of action by a mere defense, but that his “remedy shall be on the bond; but he may, in his discretion, sue thereon by way of counterclaim, and in such case shall . recover damages as in an original action on such bond.” Here there is no provision for the discharge of the attached property after a recovery on the counterclaim. If such, had been the intent of the legislature, there surely would have been a provision enacted here or elsewhere limiting the liability on the bond required by section 2996. There is no such provision, but, on the contrary, the whole scope and spirit of the attachment law appear-to deny any dissolution of the attachment after a trial and a finding that the plaintiff is entitled to'judgment. It appears to us that upon the return of the verdict it was the duty of the court to render judgment for the plaintiff. When such judgment is rendered, the law requires that it shall be satisfied by the sale of the attached property, or by an application of its proceeds. Code, sec. 3011. The only authority for discharging the attachment after trial is that found in section 3015, which provides that the attachment shall be discharged “if judgment in the action is rendered for the defendant.” There is no authority for discharging it where the trial results in a finding and judgment for the plaintiff.

We have thus disposed of this question without reference to cases in other jurisdictions. We must abide by what appears to us to be- the meaning and intent of our own statute. Reveesed.  