Summary
In McCutcheon v. Weston, 65 Cal. 39, [2 P. 727], the court decided that the surety was liable in such undertaking, although there were two defendants to the attachment suit, and the judgment was against one only.
Summary of this case from Passow & Sons v. United States Fidelity & Guaranty Co.Opinion
APPEAL from a judgment of the Superior Court of the county of Alameda, and from an order refusing a new trial.
The action was against the sureties upon an undertaking given under the provisions of section 540 of the Code of Civil Procedure. The plaintiff's intestate, Robert McCutcheon, brought an action against F. E. Weston and H. Leslie, and caused an attachment to be issued and levied upon their property. The appellants executed the undertaking referred to in the opinion, in the sum of $1,500, which recited the issuance of the writ of attachment, and that the bond was given to prevent the levy of attachment, and was conditioned that if the plaintiff Robert McCutcheon should recover judgment in the action, they would pay to him, on demand, the amount of the judgment and costs, not to exceed the penalty of the undertaking. The plaintiff recovered judgment against defendant Leslie for the sum of $1,049.70, upon which execution was issued and returned unsatisfied. The other facts appear in the opinion of the court.
COUNSEL:
R. A. Redman, and J. C. Martin, for Appellants.
R. L. McKee, and B. McFadden, for Respondent.
OPINION
MYRICK, Judge
Action on an undertaking given under section 540 of the Code of Civil Procedure. The averments of the complaint and the provisions of the undertaking are similar to those in McNamara v. Hammerschlag (opinion filed January, 1884). On the authority of that case, and Preston v. Hood, 64 Cal., we hold that the points taken by the appellant relating thereto are not sustained. The plaintiff, in pleading the recovery of the judgment in the attachment suit, avers that the plaintiff in that action "recovered judgment against the defendant therein, H. Leslie, which was rendered in said action for the sum of," etc., "which judgment was entered and docketed," etc. The plaintiff herein sued as administrator of the plaintiff in the attachment suit. In pleading his capacity he avers "that on the 20th day of July, 1880, letters of administration upon the estate of said Robert McCutcheon, deceased, were issued by the Superior Court of the said county of Alameda, to this plaintiff who duly qualified as the administrator of said estate, and entered upon the discharge of his duties as such administrator; that plaintiff is now and has been continuously ever since the said 20th day of July, 1880, the administrator of the estate of said Robert McCutcheon, deceased."
The complaint was not demurred to by reason of any alleged defect in either of these two particulars, nor because it did not state facts sufficient to constitute a cause of action, though there was a demurrer on other grounds.
The appellant presents the point in this court for the first time, that the complaint is insufficient, in each of the two particulars above noted, to sustain the judgment.
We think the point not well taken. This is not an action on a judgment, but it is on an undertaking. The undertaking reads, "if the plaintiff shall recover judgment in said action we will pay," etc.; the allegation in the complaint is that judgment was recovered, entered, and docketed. We think this sufficient. We think the allegation as to representative capacity is sufficient to sustain a judgment, there having been no demurrer on that ground.
[2 P. 728] The point that judgment was recovered against one of the defendants only, in the attachment suit, is not well taken. The action was against two, and the undertaking was to pay "if the plaintiff shall recover judgment in said action." Why judgment was recovered against one only, we are not informed; but the court had power to render such judgment, and it was rendered in that action.
The judgment and order are affirmed.
THORNTON, J., and SHARPSTEIN, J., concurred.