Page:North Dakota Reports (vol. 1).pdf/323

, C. J. The defendant and appellant, having given the statutory undertaking to discharge the attachment under which his property had been seized, now insists that his right to have the attachment dissolved because improvidently issued is nevertheless unimpaired. The ground of the attachment was the non-residence of the defendant, and on the motion to dissolve it the defendant presented affidavits showing that the attachment affidavit was in that respect false. These affidavits, on the motion of the plaintiff, were stricken from the files, the court below ruling that the right of defendant to move to dissolve on the ground that the attachment had been improvidently issued was lost by his giving the undertaking to discharge the attachment under the statute. Was this error? The statute provides two distinct modes of securing the discharge of an attachment. One is on motion, because of irregularities in the proceedings, or on account of the falsity of the attachment affidavit; the other is by the giving to the plaintiff of an undertaking to pay the judgment. §§ 5009-5011, Comp. Laws.

It is clear that a successful motion to discharge an attachment, culminating in an order to that effect, is the utter annihilation of the proceeding. Everything from the seizure back to and including the false affidavit is swept aside. The language of the statute is that the defendant may move to “discharge the attachment.” The same language is employed in the section providing for the giving of an undertaking by the defendant. Such an undertaking operates to “discharge the attachment.” The same language is employed in the section providing for the giving of an undertaking by the defendant. Such an undertaking operates to discharge the attachment.” These words must have the same construction when used to describe the effect of the giving of such undertaking as when employed in the section relating to motions to dissolve, unless we can see good reason for giving them different interpretations in the different sections. If the only effect of the giving of an undertaking by the defendant was designed to be the release of the particular property seized from the levy, if the writ nevertheless was to remain in its full vigor, why did not this section limit such effect in express terms to a discharge of the lien of