ON REHEARING.
MORGAN, J.The plaintiff files motion for rehearing in this case, and cites, as an additional authority, Harvey v. Foster, 64 Cal. 296, 30 Pac. 849, in support of his contention that the obligors in the bond cannot be heard to plead that the attachment was issued upon a false or insufficient affidavit. In that case, however, there was no bond given for the release of the property from the lien of the attachment. The contention was between the attaching creditor and a mortgagee of the property levied on for the amount realized from the sale of the property in excess of the amount necessary to discharge the mortgage decree, the attaching creditor claiming it to satisfy his judgment, and the mortgagee, Kraft, claiming it to satisfy a promissory note which he held against the judgment debtor, defendant in the original suit. The cases are not parallel. There was no privity of interest between the attaching creditor and the mortgagee. The latter had no interest whatever in the original suit, and had no rights or obligations growing out of *330said suit, nor out of any of the proceedings connected therewith. In the case at bar the liability of the defendants Montandon and Cramer grew out of and were dependent upon the issuing of the attachment, and the validity of the attachment depended upon the fact that a true and sufficient affidavit in conformity with the statute had been placed on file. The lien acquired by attachment is an extraordinary remedy, and dependent wholly upon the statute, and the statute must be strictly, or at least substantially, complied with. The defendants Montandon and Cramer were not parties to the original suit, and could not appear therein, and move for a dissolution of the attachment. They have had no day in court. An attachment issued upon a false or fatally defective affidavit stands in the same position as an attachment issued without any affidavit; and can it be successfully contended that a bond executed to release property from the hen of an attachment issued without affidavit, and therefore without any jurisdiction, is supported by a valuable consideration? If the defendants in this suit cannot go back of the naked bond, then they cannot show that their obligation is without any consideration; a position, it seems to us, contrary to the plainest principles of justice. The case of Porter v. Pico, 55 Cal. 173, is cited in Harvey v. Foster, supra, in which the court say: “Any irregularities in obtaining the attachment were waived by the defendant to the suit' when he appeared and answered, without taking advantage of them, by motion or otherwise, in the course of the proceedings.” Waived by the defendants in the original suit it may be, but these defendants were not parties to this waiver. The original defendant, Tartsch, owed the debt to Murphy. The method adopted for collecting was not so material to him. These defendants did not owe the debt. The consideration for their promise, if any existed, was the release of the lien of the attachment, which in this case was invalid. In the discussion of this subject in Wade on Attachment, section 190, the following cases are referred to:
Barry v. Foyles, 1 Pet. 315: In this ease the court say: “After the defendant has appeared and [pleaded] answered, no reference can be made to the attachment proceedings, and the *331cause stands in court as if no attachment had been issued.” This was not a suit upon the bond, and is therefore not in point.
Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dec. 350, and note: In this ease the defendant was on the bond with his sureties, •and the court held that when attachment was issued the defendant had the opportunity of contesting all proceedings to procure •attachment. After answer, he could not question the regularity •of attachment proceedings.
In Voorhees v. Bank, 10 Pet. 473, land was sold and conveyed after judgment obtained by attachment proceedings. The court holds: “When ejectment was brought upon this title, the original judgment is conclusively presumed to be regular, and cannot be questioned in this collateral proceeding.” If defendant in the original action neglects the method pointed out by law to remedy errors (by appeal), he cannot do so in a ■collateral proceeding. This ease is not similar to the case at bar.
Holding a contrary doctrine, we find, among others, the following cases: In Homan v. Brinckerhoff, 1 Denio, 184, attachment was issued upon giving a bond which in its conditions was faulty, and did not comply with the statute. Attachment was levied upon property. Bond was given to release the property. Suit was brought upon the bond, judgment in original suit being given, and not paid. Held, the justice, by reason of defective bond, did not acquire jurisdiction to issue the attachment. The court say: “The court obtained jurisdiction in the ■attachment suit when the defendant Davis appeared and pleaded to the declaration. Judgment was therefore valid. But that will not aid the plaintiff. He did not hold the property under the judgment, no execution having been levied upon it. Although the plaintiff had got a valid judgment, he had no other hold upon the property than such as the attachment gave him, •and that was utterly void for want of jurisdiction to issue it.” In Whiley v. Sherman, 3 Denio, 185, the above ease -is commented upon and approved as to above point; decision rendered *332in July, 1846. In December, 1846, in Kanouse v. Dormedy, 3 Denio, 569, the same court (New York court of appeals), in suit brought upon a bond given to release property levied upon by attachment, the court pass upon the question as to validity of the bond. Affidavit for attachment was required to statenonresidence of defendant in attachment suit. Sureties on the bond appeared, and pleaded that defendant was a resident of the state of New York, and therefore that the affidavit for-attachment was not true, and the attachment was issued without jurisdiction. The court, Walworth, C., held that the onus of proving that defendant was a resident of the state of New York when attachment was issued was upon the defendants,, and not upon plaintiff, in effect holding that, if defendants had made this proof, the bond would have been without consideration and void. Wright, senator, in his opinion in the same-case, says: “In order to obtain the attachment it was necessary for the plaintiff to prove before the officer to whom the application was addressed, affirmatively and distinctly: 1. That the-debtor was a nonresident; 2. That the creditor was a resident,, or, if he was a nonresident, that the demand arose upon a contract made within the state.” And “suppose the attachingereditor should omit to state in his affidavit before the judge that his demand arose upon contract, judgment, or decree-amounting to $100, does anyone believe that the proceedings, under the attachment issued upon such an affidavit could be-sustained for any purpose ? The question of jurisdiction must always remain open to the debtor, and, if the officer had no-jurisdiction, the whole proceeding was coram non judice. If it must always remain open, then it would be competent for the debtor to show upon the trial, as a defense to the bond, by evidence, that the creditor was not a resident of the state, and therefore that the bond and all other proceedings in the matter were void as to him.” These cases are precisely similar to the-ease at bar, and hold squarely to the position taken in this casein the original opinion. We are aware that there are quite a variety of decisions in the several states upon this question, but we think this holding is more in consonance with the spirit of *333justice, which should be the groundwork of all judicial proceedings. The appeal in this case was from the order denying the defendant a new trial. This court reverses that decision, and the order of the court should be and is that appellants have a new trial. With this change the rehearing is denied.
Sullivan, O. J., and Huston, J., concur.