concurring.
The defendant A. L. Yan Boren executed five several promissory notes jointly with as many different parties, no turn of the'notes having the same makers. Plaintiff began this action against all of the makers of the notes, the petition containing five counts, each declaring upon one of the notes. The amount due upon the five notes aggregated about $1,700, and the plaintiff procured an attachment in the action for the full amount, which was directed against the property of Yan Boren only. All of the defendants except Yan Boren demurred severally to this petition for misjoinder of causes of action. Thereupon plaintiff, instead of docketing several actions as it might have done, dismissed three of its causes of action, and dismissed the action as to all of the defendants except Van Boren, who then demurred to the petition for the reason that there, was a defect of parties defendant. The demurrer was sustained by the court. Plaintiff then dismissed another cause of action, and again made the makers of the note constituting the remaining cause of action parties by a new summons. The amount of this note Avas $549. Van Boren then answered, and filed a motion to discharge the attachment on the ground, among other things, that the grounds alleged for the attachment were *145untrue, and that the attachment was excessive and malicious. The court found that the defendant Van Doren and his wife had fraudulently conveyed their property, which conveyance had resulted in defrauding the creditors of the said Van Doren, and also found that “the petition filed, and affidavit for an attachment herein and the writ issued thereon alleged that there was due upon the several causes of action the sum of $1,700; that subsequent to the levying of said writ the plaintiff dismissed from its said petition four causes of action aggregating the sum of $1,230.* The court further finds as matter of law that by the dismissal of said causes of action a presumption attaches that the grounds for the attachment as alleged in said affidavit did not exist as to these four causes of action, dismissed from said petition and said attachment being wrongful as to one cause is vitiated as to all of said causes of action.” The court therefore discharged the attachment.
The opinion of the commissioner is that the attachment was excessive, and for that reason- the order discharging it was correct. I felt much hesitation in consenting to this view of the case. No doubt the plaintiff, when it dismissed its causes of action, should also have released a part of the property from the attachment, and, when the motion was filed to discharge the attachment upon the ground that it was excessive, the plaintiff without doubt might have asked the court to discharge the attachment as to the excessive levy, and retained its lien for the claim which it succeeded in establishing. The plaintiff seems to have put itself in the position of insisting upon holding all of the property or none. It clearly was not entitled to hold all the property under this attachment, and for this reason I am constrained to concur in the conclusion reached.