
    Gottlieb Storz et al. v. Lena Finklestein, Administratrix, et al.
    Filed April 10, 1896.
    No. 6308.
    1. Reply: Permission to File. The granting of permission to file a-reply out of time, or during the trial, rests largely in the legal discretion of the trial court.
    2. Continuance: Review of Order. An order denying a continuance of a cause will not be reversed except for an abuse of discretion.
    5. Intoxicating- Liquors: Sales: Contract eor Unlawful Resale. Where intoxicating liquors are sold in this state for the purpose of enabling the purchaser to resell them contrary to, or in violation of, the laws of this state, and the vendor has the knowledge of the illegal purpose of the buyer and participates with him in the illegal traffic, the sale is void, and no recovery can be had for the purchase price of the liquors thus sold.
    4. Wrongful Attachment: Damages: Action on Bond: Malice. In the absence of malice, an action for the wrongful suing out of an attachment can be maintained alone on the attachment bond. To maintain an action independently of the statute, and not on the bond, malice in suing out the writ and want of probable cause must be averred and shown. (Jones v. Fruin, 26 Neb., 76.)
    5. -: -: -: Bueden cot Pbooe. In an action on an attachment bond, where the answer denies each allegation in the petition, the burden is upon the plaintiff to establish the execution of the bond, and to sh.ow that the attachment was wrongfully issued, — that is, that the ground stated in the attachment affidavit did not exist.
    6. -: -: -: -. It is not enough that it be shown that the attachment was merely dissolved. Eaton v. Bartsclierer, 5 Neb., 469, followed.
    7. Bill of Exceptions: Omission oe Depositions: Review. This court will not weigh the evidence to see if it sustains the verdict, when the bill of exceptions, on its face, reveals that a deposition introduced and read upon the trial has been omitted therefrom, even though the trial judge has certified that the bill contains all the evidence offered or given upon the trial.
    Error from tbe district court of Douglas county. Tried below before Keysor, J.
    Tbe facts are stated in tbe opinion.
    
      Lake, Hamilton & Maxtoell, for plaintiffs in error:
    Permitting a reply to be filed during a trial is a ground for continuance where new issues are raised. (Taylor v. Hefner, 4 Blackf. [Ind.], 387*.)
    Mere knowledge of tbe seller that tbe buyer intends to put tbe goods to an unlawful use, where they may be lawfully used, will not make tbe sale illegal or prevent tbe recovery of tbe purchase price. (Tiedeman, Sales, sec. 294; Tlúmes v. Stumpff, 33 Kan., 62; Botoman Distilling Go. v. Nutt, 34 Kan., 724; Benjamin, Sales [4th Am, ed.], sec. 791; Newmark, Sales, sec. 364; Webber v. Don-nelly, 33 Mich., 469; Gambs v. Sutherland, 59 N. W. Rep. [Mich..], 652; Tegler v. Shipman, 33 la., 195; McKinney v. Andrews, 41 Tex., 363; Dater v. Earl, 3 Gray [Mass.], 482; Curtis v. Leavitt, 15 N. Y., 15, 235; Tracy v. Talmage, 14 N. Y., 162; Kreiss v. Seligman, 8 Barb. [N. Y.], 441.)
    By wrongfully suing out attachment is meant, not the omissions, irregularities, or informalities in issuing the same, but that the party resorted to it without sufficient grounds. (Eaton v. Bartscherer, 5 Neb., 471; Sharpe v. Hunter, 16 Ala., 765; Raver v. Webster, 3 la., 502; Pettit v. Mercer, 8 B. Mon. [Ky.], 51.)
    An action for wrongful attachment, in the absence of a statute, can be maintained only on the attachment bond. (Tallant v. Burlington Gas-Light Co., 36 la., 262; Palmer v. Foley, 71 N. Y., 108; Drake, Attachments [7th ed.], sec. 726.)
    Keferences to question relating to measure of damage: Goebel v. Hough, 26 Minn., 257; Clark v. Marsiglia, 1 Den. [N. Y], 317; Lord v. Thomas, 64 N. Y., 109; Nebraska City v. Nebraska City Hydraulic Gas-Light & Coke Co., 9 Neb., 343; Bishop, Contracts, sec. S42.
    
      Estabrook & Davis, contra, cited:
    
      Struthers v. McDowell, 5 Neb., 493; Rudolf v. McDonald, 6 Neb., 165; Shepherd v. Hills, 11 Exch. [Eng.], 55; Tilson v. Wanoick, 4 B. & C. [Eng.], 962; Hart v. Barnes, 24 Neb., 782; Haverly v. Elliot, 39 Neb., 201; Storz v. Finklestein, 46 Neb., 577.
    
      Chas. E. Clapp, also for defendants in error.
   Nor val, J.

This action was brought upon an attachment bond by Louis M. Finklestein against Gottlieb Storz and Joseph D. Her, as principals, and Theodore Olsen, as surety upon said bond, to recover damages for the alleged wrongful suing out of a writ of attachment and levying it upon certain personal property of the plaintiff. The petition contains the usual averments. Storz & Iler, in their answer, admit the bringing of the attachment suit', the filing of an affidavit for attachment, the issuing of the writ of attachment, the levying thereof on plaintiff’s-property, and that the court discharged the attachment. All other allegations in the petition they deny. They also aver that the affidavit for attachment was made in good faith, and that they had probable cause to believe the allegations therein contained were true. The answer further pleads as a set-off that plaintiff is indebted to Storz & Her in the sum of $388.43, with -interest thereon^ on an account for beer sold and delivered to plaintiff at his request, for which amount, with interest, they pray judgment. The defendant Olsen answered by a general denial of each allegation contained in the petition. After the jury had been impaneled a reply was filed by the plaintiff. The first and third paragraphs thereof were stricken out by the court, and the defendants filed a general demurrer to the second paragraph, which was overruled. There was a verdict in favor of the plaintiff for the sum of $999.92, and the defendants’ separate motions for a hew tidal were overruled and judgment rendered upon the verdict. Afterwards, on the death of the plaintiff, the judgment was revived in the name of Lena Pinkie-stein, his administratrix, and John O. Mai com, his-administrator. The defendants jointly and severally prosecute error.

The first error assigned is based upon the ruling of the trial court permitting the plaintiff to file a reply to the answer of Storz- & Iler after the jury had been sworn. The matter of granting or refusing permission to answer pleadings, or to file pleadings out of time, or during the trial, rests largely in the legal discretion of the trial court, and this court will not interfere with a ruling in that regard, unless there has been an abuse of discretion. This is the settled law of this state. (Hale v. Wigton, 20 Neb., 83; Brown v. Rogers, 20 Neb., 547; Ward v. Parlin,. 30 Neb., 376; Blair v. West Point Mfg. Co., 7 Neb., 147.) The discretion of the court below was not improperly exercised in allowing the reply to be filed. Immediately upon the filing of tbe reply, tfie defendants asked the court to continue the cause, for the reason that they were unable to proceed to trial on account of the reply putting in issue the averments in their answer*, which request was denied by the court. In this, it is claimed, there was error, and section 147 of the Code of Civil Procedure is cited to sustain the contention. This section provides: “When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of court.” This section contemplates that a cause may be continued where a- party, in consequence of the amending of the pleading of his adversary, is unable to go to trial; but the party seeking the postponement must satisfy the court of the existence of grounds therefor by affidavit or other testimony. An application for continuance is addressed to the discretion of the trial court, and it must appear that there has been a clear abuse thereof in denying it, else the ruling will not be disturbed in the appellate court. (Nebraska Loan & Trust Co. v. Hamer, 40 Neb., 281; Kansas City, W. & N. R. Co. v. Conlee, 43 Neb., 121; Stratton v. Dole, 45 Neb., 472.) The reply pleaded affirmative defenses to the set-off set forth in the answer, it is true; but the record fails to disclose that any showing was made in the support of the motion for a continuance. The court below could not know without such showing that the defendants were unprepared to meet the issues tendered by the reply. If a postponement of the trial was desired to meet the evidence which it was expected the plaintiff would adduce in support of the averments in his reply, the defendants should have made that fact to appear by proper testimony, giving the names of their witnesses who were absent, the nature of their testimony, and that defendants expected to be able to procure the attendance of such witnesses or their testimony. In the absence of such showing there was no error in refusing the continuance. (Clark v. Carey, 41 Neb., 780; Home Fire Ins. Co. v. Johnson, 43 Neb., 71; Corbett v. National Bank of Commerce, 44 Neb., 230; Dixon v. State, 46 Neb., 298.)

The next contention is that error was committed in overruling the demurrer to the second paragraph of the reply, which is as follows: “But said plaintiff avers that upon the dates from July 1 to July 9, inclusive; and in the meantime said plaintiff had no license for the sale of malt or spirituous liquors; that such fact was well and fully known to said defendants, and that it was further known and understood between said parties, plaintiff and defendants, that such beer was purchased from said defendants by said plaintiff for the purpose of being bottled and resold by plaintiff; and plaintiff avers by reason of such knowledge and such understanding and such fact such sale was illegal and void, and no recovery thereon may be had by said defendants against said plaintiff. And plaintiff further says defendants entered into a written agreement, a copy of which is hereto attached and made a part hereof, whereby said defendants were to participate and profit in said illegal traffic, and did so participate and profit therein.” The answer discloses that the account therein pleaded as a set-off, except as to three items, is for beer sold and delivered to the plaintiff between June 30, 1889, and July 10 of the same year. The defendants insist that the facts set up in the reply are insufficient to defeat a recovery for the purchase price of the beer sold between said dates, and numerous authorities are cited in the brief to the effect that the mere knowledge of the vendor that the vendee intended to put the liquors to an unlawful use, or to resell them in violation of the law, is not sufficient to render the sale void or defeat an action brought by such vendor against the vendee to recover the purchase price of such liquors. We do not question the soundness of the adjudications to which the defendants have called our attention. Clearly they are not applicable to the facts before us. Tbe plaintiff does not rely upon tbe mere knowledge of tbe defendants that tbe beer was purchased for resale in violation of tbe laws of this state. Knowledge of tbe intended unlawful use is not only set up in tbe reply, but it is further averred that tbe beer was sold by Storz & Her for tbe purpose that tbe law should be violated, and that they were to, and did, participate and profit in tbe unlawful traffic. The averments contained in tbe reply, if true, were sufficient to defeat a recovery of tbe purchase price of tbe beer sold between tbe dates above specified; hence tbe demurrer was properly overruled. (Storz v. Finklestein, 46 Neb., 577.)

It is contended that this action cannot be maintained against Storz & Her, for tbe reason they did not sign or execute tbe attachment undertaking. It is a fact that their names are not attached to said instrument, nor did they in any manner execute tbe same. Storz & Her having procured tbe undertaking to be given, they thereby became liable to their surety for any and all damages be might be compelled to pay by reason of tbe wrongful suing out of tbe attachment; but it does not follow that they are parties to tbe instrument in such a sense that they are directly liable to tbe attaching defendant in a suit upon tbe undertaking. Tbe statute does not require tbe attaching creditor to sign tbe attachment bond. It is sufficient if it be signed by tbe surety alone. (Code, sec. 200; Eckman v. Hammond, 27 Neb., 611; Howard v. Manderfield, 31 Minn., 337; Black Hills Mining Co. v. Gardiner, 58 N.W.Rep. [S. Dak.], 557; Pierce v. Miles, 5 Mont., 549.) Should judgment be recovered on this bond against Olsen, tbe surety, and be should pay it, doubtless be could sue Storz & Her and recover from them tbe amount thus paid; but that is no reason why tbe latter are directly liable to tbe plaintiff on tbe bond. They may be, and doubtless are, liable for any damages that tbe plaintiff may have sustained if they caused bis property to be attached maliciously and without probable cause. But such remedy of tbe plaintiff is not upon tbe bond, but independent of it, in tbe way of an action for a malicious attachment, in which case lie would be compelled to állege and prove want of probable cause and malice. (Jones v. Fruin, 26 Neb., 76.) In an action upon the attachment undertaking, malice need not be either alleged or proven. We have no statute in this state which permits an attaching debtor to recover damages for the mere wrongful suing out of a writ of attachment, except upon the bond; and, in the absence of such a statutory provision, such an action cannot be maintained. (Jones v. Fruin, supra; Drake, Attachment [7th ed.], sec. 726; Tallant v. Burlington Gas-Light Co., 36 Ia., 262; Frantz v. Hanford, 87 Ia., 469.) This suit is upon the bond or undertaking given by the surety, which Storz & Her have not executed. There is no averment in the petition that they maliciously and without want of probable cause procured the attachment to be issued and levied. Therefore, a cause of action is not made on paper as to Storz & Iler, and the judgment as to them must be reversed. The authorities are conflicting upon the question just discussed, but this court is committed to the rule stated and it will be adhered to.

Error is assigned for the giving of the following instruction :

“1. Ia order that the plaintiff may recover in this action, he must satisfy you by a preponderance of all the evidence (1) that defendants Storz & Her in a suit brought by them against him caused an attachment to be issued and levied on his bottling works; (2) that said attachment was dissolved in due course of law; (3) as to the amount of damages, if any, suffered by him as a direct result of the issuance and levy of said attachment; (4) that the attachment bond was duly executed by defendant Olsen.”

Section 200 of the Code of Civil Procedure provides: “When the ground of attachment is, that the defendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an undertaking. In all other cases the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff’s claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained.” The bond in this case is conditioned in accordance with the terms of' the above section. Therefore, both under the bond and the statute, the surety is liable only for the damages resulting from the wrongful issuance of the attachment writ. In an action on an attachment bond, where the-averments of the petition are put in issue by the answer,, the burden is upon the plaintiff to establish that the writ was wrongfully obtained; in other words, that the ground stated in the affidavit for attachment did not exist, or was untrue. In case there is a failure to prove such fact, the suit must fail. It is not enough that it be shown that the attachment was dissolved, since the writ may have been discharged for omission or irregularities' merely. It must further appear that the attachment' was wrongfully issued; that is, no valid grounds existed for granting the writ. This is the rule stated by Lake.. C. J., in Eaton v. Bartscherer, 5 Neb., 469. It follows that the instruction quoted was erroneous.

It is argued that the evidence is insufficient to sustain the verdict, in two particulars: First, it was not established that the defendant Olsen executed the bond, and second, the record fails to disclose that the attachment was wrongfully issued. The answer of Olsen having put in issue the execution of the bond, it devolved upon the plaintiff to° establish such fact. (Donovan v. Fowler, 17 Neb., 247; Hassett v. Curtis, 20 Neb., 162.) The evidence incorporated in the bill of exceptions fails to show that Olsen signed the instrument. While it is true there is. attached to the bond a certificate of approval of the county judge who issued the attachment, any presumption that might rise therefrom is overthrown by the testimony of the witness Haubens, to the effect that bnt three persons were present when the bond was presented and apjmoYed, and that Olsen Avas not one of them. If there was no other evidence given on the trial on the matter of the execution of the bond, it would seem Arery evident that it AArould be insufficient to establish that the surety signed the bond in suit. An inspection of the bill of exceptions discloses that on page 146 thereof the deposition of one W. S. Crabb was introduced in evidence by the plaintiff and read to the jury, which deposition does not appear in, nor is it attached to, the bill of exceptions in the case. Notwithstanding the trial judge certified that the bill of exceptions allowed by him and ordered to be made part of the record of the case contains “all the evidence offered or given upon the trial of this case by either party,” it is obvious that the deposition alluded to has been omitted from the bill; therefore, the certificate of the judge will not control. (Missouri P. R. Co. v. Hays, 15 Neb., 224; Oberfelder v. Kavanaugh, 29 Neb., 427; Schneider v. Tomblin, 34 Neb., 661; Dawson v. Williams, 37 Neb., 1; Nelson v. Jenkins, 42 Neb., 133.) Since the whole of the evidence is not before us, we must indulge the presumption that the execution of the bond was established on the trial by ample testimony.

Was the attachment resorted to without sufficient grou nds ? While the petition alleges that the attachment Avas Avrongfully obtained, yet this averment was put in issue by the answer. The burden was therefore upon the plaintiff to establish that the writ was wrongfully issued. The transcript of the county judge’s docket shows that the attachment was dissolved, but upon what ground or grounds is not disclosed. The motion to discharge was not introduced in evidence, hence we do not know the grounds upon which the dissolution of the attachment was asked. If the decision urns predicated upon omissions or irregularities merely, in the granting of the writ, that would not justify an action on the bond. On the other band, bad the attachment been dissolved npon the ground that the affidavit on which the writ was procured was false or untrue, and the record had so shoAvn, the decision Avould have been conclusive in the action upon the bond that the attachment was sued out wrongfully. We knoAV that affidavits were filed in support of the motion to dissolve, and counter-affidavits in resistance thereof; but the record is silent as to the scope of those affidavits, or whether they were read or not. Inasmuch as the bill of exceptions discloses on its face that it does not contain all the evidence adduced on the trial, we are unable to determine whether or not it was sufficient to show that the attachment was wrongfully issued.

For the errors indicated the judgment must be reversed, and the cause remanded for further proceedings.

Reversed and demanded.

Irvine, C., not sitting.  