Dierolf v. Winterfield

PAINE, J. The traverse of the facts alleged as ground for the attachment was properly stricken off. The statute provides two modes by which a party whose property is attached may obtain possession: one, by giving the undertaking provided for in section 21, chapter 130, R. S.; the other by a traverse of the plaintiff’s affidavit, and a trial of that issue, as provided in sections 23, 24, 25 and 26 of the same chapter. But it obviously was not designed that, .after adopting the first mode, the defendant should also pursue the latter. After he has given the undertaking and obtained possession of the property, the undertaking stands in the place of the attachment. There is no function for a traverse, and a trial of it, after-wards to serve. And the statute itself declares that, after the undertaking is given, the suit shall be conducted “as though no attachment had been issued.” The adoption of the one remedy was a waiver of the other. If the defendant sustained any damages by the attachment, he could have them assessed in case he recovered in the action on the trial on the merits, in pursuance of section 27. The authorities cited by the respondent’s counsel fully sustain this conclusion. By the Court. — The order appealed from is affirmed.