Legal Opinion

Caldwell v. Gans

Montana Supreme Court

Decided August 15, 1872PublishedCited by 8 opinions

Appeal from the Third District, Lewis and Clarice County. This case was tried in July, 1871, by a jury, that returned a verdict for Cans. The court, Wade, J., overruled the motion for a new trial. The facts appear in the opinion. The first ground of defense to this case, that the sureties were released by the sheriff retaking the property upon a second writ of attachment, is untenable. There is no authority in law to sustain such a proposition.

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Appeal from the Third District, Lewis and Clarice County. This case was tried in July, 1871, by a jury, that returned a verdict for Cans. The court, Wade, J., overruled the motion for a new trial. The facts appear in the opinion. The first ground of defense to this case, that the sureties were released by the sheriff retaking the property upon a second writ of attachment, is untenable. There is no authority in law to sustain such a proposition. Justice would be easily defeated if this is law.- The lien of the first attaching creditor is destroyed by the acts of third parties, in replevying…

1Opinion of the CourtWade, C. J.

This is an action on a replevin bond, and the cause comes into this court on appeal from a judgment for defendants in the court below.

A statement of the facts, as shown by the record, will be necessary to a correct understanding of the case.

On the 29th day of January, 1870, the plaintiffs commenced a suit in attachment against one Germain, and levied upon certain personal property belonging to Ger-main, which at that time was in the possession of one Dahler, by virtue of a mortgage by Germain to Dahler, July 1,1869.

On the 3d day of February, 1870, four days after the plaintiffs’ attachment,…

2Cases cited3 opinions

  1. Hunt v. RobinsonCalifornia Supreme Court · 1858
  2. M'Rae v. M'LeanSupreme Court of Alabama · 1836
  3. Evans v. KingSupreme Court of Missouri · 1842

3Cited by8 opinions

  1. Pue v. WheelerMontana Supreme Court · 1927
  2. Blue Bird Mining Co. v. MurrayMontana Supreme Court · 1890
  3. Clark v. National Surety Co.Montana Supreme Court · 1927
  4. Coen v. WatkinsMissouri Court of Appeals · 1895
  5. Rinker v. LeeNebraska Supreme Court · 1890

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