Couse v. Phelps

The opinion of the court was delivered by Brewer, J.: This case is disposed of by the decision in McGonigle v. Gordon, 11 Kas., 167. It was there decided that “in an action on an undertaking given by the defendant in' an attachment case, to secure the release of the attached property, it was necessary to aver, and show by the evidence, that the attached property was restored to the defendant, or there could be no recovery on the undertaking.” This was [354] an action on such an undertaking, and the petition did not allege any restoration of the property to the defendant. Hence, the demurrer should have been sustained; and the judgment of the district court is reversed, and the case remanded with instructions to sustain the demurrer. . All the Justices concurring.