Reversing.
On October 9, 1923, J.B. Bean brought an action in the Owen circuit court against Munday Cobb to recover damages in the sum of $10,000.00 for the alienation of the affection of his wife. An attachment was taken out and an attachment bond was executed on October 12, 1923, by the Fidelity and Deposit Company of Maryland, as surety therein. The attachment on October 17, 1923, was levied on a Ford automobile and a grey horse, both of which were left in the possession of Cobb. The Farmers' National Bank of Owenton and P.O. Minor were summoned as garnishees. Cobb's account at the bank was overdrawn. Minor owed Cobb a note. On October 31, 1923, Cobb executed a bond under section 221 of the Code and so had the attachment discharged. Cobb then filed his answer to the suit and Bean thereafter dismissed his suit against Cobb without prejudice. Cobb then brought this action to recover damages on the attachment bond against the Fidelity and Deposit Company, the surety in the bond. On the hearing of the case the jury found a verdict for Cobb for $350.00 for his attorneys' fees, $35.00 for loss of time in defending the attachment and $15.00 for the expenses incurred, making a total of $400.00. The court entered judgment on the verdict. The Fidelity and Deposit Company appeals.
Section 221 of the Code is in these words:
"If the defendant, before judgment, cause a bond to be executed to the plaintiff by one or more *Page 468 sufficient sureties, approved by the court, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution be made of any property taken under it or of the proceeds."
The bond which Cobb executed under this section, by its very terms, operated to discharge the attachment and entitled him to restitution of any property taken under it. His present action is on the attachment bond, which provides that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment if wrongfully obtained. The question presented is, does the discharge of the attachment by the execution of the bond under section 221 estop Cobb from showing that the attachment was wrongfully obtained? In section 89, page 875, 2 Rawle C. L., after a showing that there is a conflict of authorities on the question, this follows:
"Other courts have taken the position that after giving a bond the defendant cannot attack the validity of the levy, for the reason that giving the bond is a waiver of all technical objections to the form of the levy. And in still other jurisdictions it is held that the effect of giving a bond operates as a discharge of the attachment by operation of law, that the undertaking stands in place of the attachment, and consequently there is no function of a traverse or trial of it afterward, as the affidavit for attachment has become functus officio. Where the bond is given under a statute requiring an unconditional promise to perform the final judgment of the court, it has been held that the defendant is estopped to raise any question as to the regularity of the attachment proceedings, it being intimated that no estoppel arises if the undertaking is made under a statute which requires only a forthcoming bond."
See to same effect notes 123 Am. St. Rep. 1049-50; 12 Ann. Cas. 170-72.
This court is one of the courts that has from the beginning taken this view. In Hazelrigg v. Donaldson, 2 Met. 445, it thus stated the rule:
"When such a bond is executed the attachment is discharged by operation of law, and the obligors in the bond are bound unconditionally to perform the judgment of the court in the action. In an action *Page 469 to enforce the bond, neither the sufficiency of the grounds for obtaining the order of attachment, nor the liability of the property levied on under the attachment, can be made a subject of inquiry. As the execution of the bond has the effect to discharge the attachment, no question as to the validity of the attachment can afterwards be made in the cause; and as the court, after the bond is executed, has no longer any power or control over the property attached, no claim which any person may have to it can be investigated in the action. When the bond is executed, it stands in lieu of the attachment, and the action proceeds as if no attachment had ever been issued."
That opinion has been consistently followed since. Bell v. Western, c., Wrecking Co., 3 Met. 557; Taylor v. Taylor, 3 Bush 118; Miller v. Desha, 3 Bush 212; Lee v. Newton, 87 S.W. 789; Leet, c., Co. v. Green,
"According to this construction of the legal effect of the bond, it is obvious that the appellants were concluded by it from controverting the grounds of the attachment." Inman, c. v. Strattan, c., 4 Bush 445.
As the execution of the bond discharged the attachment, there could in that action be no inquiry as to whether it was rightfully or wrongfully obtained. By the execution of the bond the defendant waived all objections to the attachment or what had been done under it. He put it out of the power of the plaintiff to establish in that action that the attachment was properly obtained. But for the giving of the bond the plaintiff might by amendment have asserted other grounds in addition to those he had alleged, and might so in the end have sustained the attachment, though the grounds he had alleged, which had been controverted, were not sustained by the evidence. This he could not do after the bond was executed. In addition facts then capable of proof may not be proved after some elapse of time. The Code clearly provides how the attachment issue shall be tried. Section 264 is in these words:
*Page 470"The trial of the attachment shall be by the court, and the witnesses shall be orally examined, except in cases wherein depositions might be read in an ordinary action."
The trial by the court with the witnesses before it could not be had after the bond was executed; and the right to a trial being expressly waived by the execution of the bond now sued on, the defendant cannot be heard to say that the right he then waived may be asserted in this action and is to be determined by the jury on the facts now shown. It is true section 260 of the Code provides:
"If judgment be rendered in favor of the defendant the attachment shall be discharged."
But there was no attachment when the judgment in this action was entered. It had been discharged by the execution of the bond.
The motion for an appeal is sustained and the judgment is reversed, with directions to dismiss the petition. Whole court sitting.
