Jacoby v. Drew

11 Minn. 408

• Court: Supreme Court of Minnesota
• Decided: January 15, 1866
• Status: Published

Opinion

By the Cowrt

Berry, J.

-The warrant of attachment issued by the clerk, without a preliminary allowance by the judge, was, as heretofore decided by this court, unauthorized and void. Lovejoy v. Morrison, 6 Minn. 183; Zimmerman v. Lamb, 7 Minn. 423; Guerin, v. Hunt, 8 Minn. 487.

The undertaking required by statute in case of attachment, does not possess the necessary elements of an ordinary contract. Owing its binding force and obligation entirely to the statute, it follows that it is only in the cases in which it is authorized by statute that it can possess any validity.

It is obvious, therefore, that the undertaking upon which this action is founded, is invalid, and, therefore, its breach furnishes no cause of action, because the constitutional statute neither contemplates nor authorizes the issue of a warrant by the clerk without allowance thereof by the judge,- nor of course the execution or use of an undertaking for the purpose of procuring the same.

The warrant and the undertaking are alike void. The facts of the case of the State v. The City of Buffalo, 2 Hill, 434, relied upon by the counsel for the respondent, make out a ratification of an assumed agency, and there is nothing of that kind here.

The order overruling the demurrer is reversed, and the cause remanded.