McIntosh v. Hurst

Bach, J. This action was commenced in the probate-court of Dawson county, and was brought against the de [288] fendant, as one of the sureties upon an undertaking- to prevent an attachment which had been issued in an action pending in the district court of Dawson county, in which the plaintiffs herein were plaintiffs, and Charles H. Corbett was defendant. The undertaking is the one provided for in section 182 of the Code of Civil Procedure. The defendant demurred to the complaint in the probate'court. The record fails to show what disposition was made of the case in that court, and merely states that the case was, “ from there, on motion, certified to the district court.” In the district court the defendant demurred to the complaint, upon the ground that it did not allege facts sufficient to constitute a cause of action. The demurrer was overruled; and the defendant failing to answer, judgment was thereupon entered in favor of the plaintiffs. Prom that judgment the appeal is taken. The point raised by the appellant, and upon which the demurrer is based, is that the defendant in the action in which the undertaking was given did not sign the undertaking as principal. It is unnecessary to refer to the authorities which the appellant cites in his brief. This court has already decided that, in an undertaking on attachment, the plaintiff need not sign as principal. See Pierse v. Miles, 5 Mont. 549. The same rule applies to an undertaking to prevent an attachment. Judgment is affirmed, with costs. All the judges concur.