Moline, Milburn & Stoddard Co. v. Curtis

Maxwell, C. J.,

dissenting.

This cause was submitted to the commission, and a decision of a majority of that body not conforming to the views of this court upon one point, it is necessary to state the law upon the subject, as I understand it. The action was brought by the plaintiff against the defendants in the county court by attachment. The defendants thereupon filed a motion to dissolve the attachment and supported the same by various affidavits. It was also claimed that the affidavit of one Croy, the agent of the plaintiff, was insufficient and an amendment was permitted. On all these questions the opiuion of the majority of the court, in my view, is right. The county court sustained the attachment. The cause was taken on error to the district court and a bill of exceptions, duly signed, containing the affidavits and *535evidence submitted on a motion to dissolve the attachment. A motion was made in the district court to strike the bill of exceptions from the files because there was no authority of law for the granting of the same. The motion was overruled, and the attachment was sustained. The ruling of the court is the principal question involved.

Section 236e of the Code provides: “ That when an order discharging an order of attachment is made, and any party affected thereby shall except thereto, the court, or judge, shall fix the number of days, not to exceed twenty, in which such party may file his petition in error, during which time the property attached shall be • held by the sheriff or other officer, during which period the petition in error shall be filed, and the party filing the same shall give an undertaking to the adverse party, with surety or sureties, to be approved by the court, in double the amount of the appraised value of the property attached, conditioned to pay said adverse party all damages sustained by such party in consequence of the filing of said petition in error in the event that such order of attachment shall be discharged by the court, in which said petition in error shall be filed, as having been unlawfully obtained.” This provision of the Code was adopted in 1873, and applies to all cases of attachment where an order is made discharging the same. Now is it possible that in a certain case the attaching creditor may, when the attachment is discharged, have the evidence on which he predicates his right preserved in a bill of exceptions and in a similar case in another court would be denied that privilege? It is true in an early day in the judicial history of the state this court held that a bill of exceptions could not be taken from the ruling of a justice of ■the peace in cases not tried by a jury. (Taylor v. Tilden, 3 Neb., 339; Kellogg v. Huntington, 4 Neb., 96.) Those decisions have been adhered to and are the law of this state. ' These eases rest to some extent upon the ground that an adequate remedy is given by appeal. They refer to causes *536tried before a justice of the peace upon the merits. In my view, they do not refer to special proceedings, as by attachment. In such case the only mode of review provided in the Code is on error. This is expressly provided for; but how can the case be reviewed unless the evidence upon which it was heard in the trial court is carried up to the reviewing court ? The authority to review the action of the trial court carries with it the right to have all the testimony before the reviewing court. Otherwise, the right of review would be a vain proceeding, a delusion, and mockery of justice. As I understand the rule, statutes are, if possible, to be so construed as to give them force and effect, and not to annul their operation.

Section 16, chapter 20, Compiled Statutes, provides: “Orders for arrest and for attachments of property may issue in actions brought under this chapter, but when the demand in such action exceeds the jurisdiction of a justice of the peace, the proceedings' upon such orders shall be the same, as near as may be, as in actions brought in the district court. The return day of such orders shall, when issued at the commencement of the action, be the same as that of the summons; when issued afterwards, they shall be made returnable forthwith.” In the case at bar the amount involved amounts to nearly $900, and the statute declares that where the amount exceeds $200 “the proceedings upon such orders shall be the same, as near as may be, as in actions brought in the district court.” What orders ? All orders for arrest or attachments. Now by what authority does the court limit the word “proceedings”? All proceedings relating to the attachment, as I understand thé meaning, include all that is done in relation to the same in the county court. If the case was tried in the district court, the preparation and signing of a bill of exceptions would be a part of the proceedings in that court. Is not the same true where the action is brought in the county court, where the amount involved exceeds $200 ? I be*537lieve the construction placed upon this language is forced and unnatural, and not only works injustice in the case at bar, but is calculated to do injustice. The precise question here involved was before this court in Osborne v. Canfield, 33 Neb., 330; and it was held by a unanimous court that a county judge “may sign a bill of exceptions in any case where an attachment has been discharged by him.” That question was the principal one presented in that ease, and the right was sustained, and the rule should be adhered to.

But let us suppose that the Code provides no remedy. Then we have recourse to the remedies which existed under the former practice. Section 901 of the Code provides: “ Rights of civil action given or secured by existing laws shall be prosecuted in the manner provided by this Code, except as provided in the following section. If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this Code, the practice heretofore in use. may be adopted so far as may be necessary to prevent a failure of justice.” Under the former practice a writ of certiorari would be issued to certify up the record where there was no remedy by appeal or writ of error. All attachment proceedings in this state are purely statutory, and if no other remedy exists, are reviewab'le by certiorari. (Hartshorn v. Wilson, 2 O., 28; Learned v. Duval, 3 Johns. Cas. [N. Y.], 141; Dougan v. Arnold, 4 Dev. L. [N. Car.], 99; Branson v. Shinn, 13 N. J. Law, 250; Wilson v. Ray, T. U. P. Charlt. [Ga.], 109 ; Fryer v. Blackmore, 1 Murph. [N. Car.], 94; 2 Spelling, Extraordinary Relief, sec. 1939.) It is very clear to my mind that the parties are entitled to have the record certified up, and that the judgment of the court below is right and should be affirmed.