Opinion
Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.
This was an action upon a bail bond, executed by defendant Babcock as surety, conditioned that defendant Pollock should appear and answer any indictment that might be found against him for certain charges. There was no averment in the complaint that Pollock was released from custody on the execution and delivery of the bond. The defendants demurred to the complaint, the demurrer was overruled, and judgment was rendered for the plaintiff, from which the defendants appealed.
COUNSEL:
A. A. Wilson, for Appellant, cited Williamson v. Blattan , 9 Cal. 500; Van Stanvoord's Pleading, 216; Spear v. Dowling, 12 Abb. Pr. 437.
C. E. Thorn and E. M. Ross, for Respondent.
OPINION By the Court:
Without noticing other objections to the complaint we are satisfied that the demurrer should have been sustained, on the ground that it is not averred that Pollock was released from custody upon or by reason of the execution and delivery of the bond set forth. This averment is indispensable in an action of this character.
Judgment reversed and cause remanded, with directions to the Court below to sustain the demurrer, and with leave to the District Attorney to amend the complaint in the respect indicated and in such other respects as he may be advised.