Opinion
For Opinion on Hearing, see 38 Cal.Rptr. 412, 392 P.2d 5.
Jones & Sinai, Santa Rosa, for appellant.
Frederick L. Hilger, Eureka, for respondent.
BRAY, Presiding Justice.
Appellant Crosswhite appeals from a judgment in favor of respondent, The American Insurance Company, denying appellant recovery on a claim and delivery bond issued pursuant to section 512, Code of Civil Procedure.
QUESTIONS PRESENTED.
1. Where the original plaintiff in a claim and delivery action seizes property of the defendant in that action, then dismisses the action, must that defendant litigate and establish his right to possession of the property before he can recover on the bond given in that action?
2. Does immediate commencement by the original plaintiff of another claim and delivery action for the same property relieve the surety of liability on the bond?
3. What is the measure of damages recoverable on the bond?
RECORD.
DeBon Motor Company sold a logging truck to one Newby, taking back a note and chattel mortgage as part of the sales price. Newby defaulted in his payments. He then sold the truck to the Big Foot Lumber Company,
These documents do not meet the requirements of section 2982, Civil Code. That fact, however, is of no significance in this case, as noncompliance with that section does not prevent a conditional vendor from repossessing the property sold.
1. DOES APPELLANT HAVE TO PROVE RIGHT TO POSSESSION?
The trial court held, in effect, that to recover on the bond, appellant would have to prove his right to possession of the truck at the time of the seizure; that under the terms of the mortgage DeBon was entitled to its possession; that in any event the immediate commencement of a new claim and delivery action constituted a reinstitution of the original action, and for those reasons appellant could not be damaged.
Flatly posed here is the question as to whether to recover on the bond required by section 512, a plaintiff must prove a right to possession of the property taken superior to that of the party for whom it is taken, or may the plaintiff, in an action on the bond, recover merely by showing that he had possession at the time the property was taken?
Section 512 reads in pertinent part: 'Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, * * * to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, such officer must forthwith take the property * * *.' (Emphasis added.)
We are concerned only with that portion of the section which imposes liability upon a surety because of being 'bound to the defendant * * * for the prosecution of the action * * *.' Thus, the issue is the extent of respondent's liability for DeBon's failure to prosecute the original action.
The action of the trial court in that action in ordering the truck returned to appellant because of procedural defects is not an adjudication on the merits of the rights of the parties. (See Code Civ.Proc. § 1911.)
Claim and delivery pursuant to section 512, Code of Civil Procedure, is not a form of action but 'an auxiliary remedy very similar to the auxiliary remedy of attachment * * *' (Faulkner v. First National Bank (1900) 130 Cal. 258, 263, 62 P. 463, 464.) This 'provisional remedy gives only a temporary possession; title and right to possession are determined by the final judgment.' (1 Witkin, Cal. Procedure, p. 848.)
There appears to be no case in California in which the question of whether, in a suit The nearest approach to a determination of that question appears in Bucy v. New Amsterdam Casualty Co. (1957) 150 Cal.App.2d 572, 310 P.2d 189. It involved a situation similar to that in the case at bench. Bucy held certain dies under a claim of lien for the unpaid price. Schimel Arms Corporation filed a claim and delivery action against Bucy and provided a bond of the casualty company in accordance with the provisions of section 512. The marshal seized the dies and delivered them to Schimel. Thereafter Schimel dismissed the action. Bucy then sued the casualty company on the bond. One of the contentions made by the latter was that the complaint did not state a cause of action because it did not allege that in the original action Bucy could have obtained a judgment for a return of the property or its value. In other words, the casualty company made the same contention as that made by respondent here, that no recovery could be had on the bond unless the plaintiff proved that he had the right to the possession of the property at the time it was taken from him. The court held that there was no merit to that contention. 'So far as liability on the bond is concerned, Section 512 of the Code of Civil Procedure, hereinbefore quoted, specifically provides that the obligor is bound, among other conditions, 'for the prosecution' of the claim and delivery action. Were this not so, a plaintiff, after having secured possession by claim and delivery, might merely dismiss the action and the defendant, although possessing a worthy right to the property seized, would have no recourse on the bond although great injury had resulted from the unjustified action. This is exactly what has happened here. In place of proceeding with a trial which would have determined whether Bucy was entitled, by reason of a lien or otherwise, to possession of the dies, the Schimel Arms Corporation dismissed its claim and delivery action against Bucy. There can, under the applicable statute, be no question as to liability on the bond.' (150 Cal.App.2d p. 574, 310 P.2d v. 190.)
In the Bucy case, the plaintiff did prove that he had a right to possession of the dies, i. e., the validity of his claim of lien. However, there is no intimation in the opinion of any requirement that he had to do so in order to recover on the bond.
In Mills v. Gleason (1862) 21 Cal. 274, the plaintiff in a claim and delivery action, after receiving delivery from the sheriff of the property of which the action sought recovery, failed to prosecute the action. The defendant obtained a judgment dismissing the action for want of prosecution. He then sued the surety on the bond given pursuant to section 102 of the Practice Act (the predecessor of section 512). A judgment in his favor for the value of the property taken (which had not been returned) was affirmed. It does not appear whether in the action on the bond the plaintiff was required to prove his right to possession. The defendant in that action contended that the damages which could be recovered would have to be measured by the judgment in the claim and delivery action, which did not provide for damages but for dismissal with costs. The court held (p. 280): 'A dismissal stands upon the same footing as a nonsuit, leaving the parties to settle in an action upon the undertaking those matters which, if the original suit were prosecuted, it would be necessary to determine in the first instance. Such matters include, of course, the right of the defendant to a return of the property, and as the opportunity to obtain a judgment for its return is taken away by the failure to prosecute, he is entitled to compensation in damages. A failure to prosecute is a breach of the undertaking, and the legal and necessary result is that the sureties to the undertaking are liable for whatever injury the defendant has sustained.' (Emphasis added.)
Respondent relies upon the italicized portion of the above opinion for its contention that in order to recover herein In Tapscott v. Lyon (1894) 103 Cal. 297, 37 P. 225, an action for the wrongful taking and conversion of personal property, the court noted, concerning the original plaintiff in a replevin suit which he dismissed after receiving the property, 'He obtained a provisional remedy on condition that he would prosecute his suit and obtain a final adjudication determining his right. Section 512, Code Civ.Proc. He failed to perform this condition. He thereby made himself a trespasser from the beginning, unless he can show title. True, it was a breach of the condition of his undertaking, and the defendant might then have sued upon the bond for such damages as he sustained by the taking.' (103 Cal. p. 310, 37 P. p. 228; emphasis added.)
The 'unless he can show title' in the above statement applies where the property taken is not returned. Where the property is returned the more applicable language is 'the defendant might then have sued upon the bond for such damages as he sustained by the taking.'
Section 581, subdivision 1, Code of Civil Procedure, provides that where the plaintiff dismisses an action, 'If a provisional remedy has been allowed, the undertaking shall upon such dismissal be delivered by the clerk or judge to the defendant who may have his action thereon.' (Emphasis added.)
American Multigraph Sales Co. v. Cradick Co. (1929) 99 Cal.App. 589, 279 P. 191, holds that the procedure provided in a claim and delivery action is a 'provisional remedy' and that section 581, subdivision 1, 'provides a manner and method whereby the defendant may obtain relief in such a case as this [dismissal of a claim and delivery action] is * * * free from doubt.' (99 Cal.App. p. 591, 279 P. p. 192.)
In Shockley v. General Casualty Co. (1961) 194 Cal.App.2d 107, 14 Cal.Rptr. 789, the defendant's property was seized under a writ of attachment issued in an action brought against him. The plaintiff then dismissed the action. In the suit on the attachment bond for damages sustained for the loss of the use of the property while detained by the sheriff, the court held that the voluntary dismissal was a judgment in favor of the original defendant under section 577, Code of Civil Procedure, for the purpose of liability on the attachment bond. 'The purpose of requiring a bond is to protect the defendant against damage by reason of the attachment, and when the attachment was terminated by the dismissal of the action, the defendant was entitled to the recovery of any damages suffered by reason of the attachment.' (194 Cal.App.2d p. 109, 14 Cal.Rptr. p. 790.)
Although, as stated by the trial court in its memorandum opinion, Shockley is distinguishable on the ground that the property seized in attachment always is the property owned by the defendant and not claimed to be owned by the plaintiff, it is difficult to understand why the reasoning in Shockley should not apply to actions on a claim and delivery bond. In both instances the bond is given to indemnify the defendant should the plaintiff not establish his claim in the particular action, and the plaintiff by his actions has interfered with the defendant's possession and use of the property of which the defendant is in possession.
The judgment of dismissal in the claim and delivery action was not a judgment on the merits. It merely determined that the defendant in that suit (appellant here) was entitled to his costs of suit because of the dismissal. It did not determine 2. EFFECT OF THE SECOND ACTION.
Respondent apparently argues that the filing of the second action was a 'reinstitution' or 'extension' of the first action and therefore relieves the surety of liability on the bond. This action is neither. It is a new and completely different action, and in no way changes the fact that DeBon did not prosecute the first action. As we have hereinbefore shown, appellant Crosswhite was legally entitled to possession of the truck until DeBon under the authority of his mortgage lien legally asserted his right to take possession, either by suit or by repossession provided for in the mortgage. DeBon at no time pursued the latter remedy. Appellant was entitled to the use of the truck until that occurred. Appellant's legal possession was illegally taken from him by DeBon and appellant is entitled to any damages he may have suffered by loss of use of the truck from the time it was taken until it was restored to him.
3. DAMAGES.
Appellant did not lose the truck by DeBon's action in the first case. He merely lost temporary possession and use. As we have hereinbefore shown, the proper measure of damages is the value of the loss of use of the truck while out of appellant's possession. As the trial court erroneously held that appellant could not recover damages, the cause will have to go back to the trial court on the issue of damages alone.
The judgment is reversed and the cause is remanded for trial on the issue of damages alone.
SULLIVAN and MOLINARI, JJ., concur.