Opinion
Appeal from Superior Court, Los Angeles County; Russ Avery, Judge.
Action by Frank C. Turner against the Fidelity & Deposit Company of Maryland. From judgment for plaintiff, defendant appeals. Affirmed. COUNSEL
S.E. Vermilyea and S. L. Carpenter, both of Los Angeles, for appellant.
Stephens & Stephens, of Los Angeles, for respondent.
OPINION
THOMAS, J.
This is an action to recover on a bond alleged to have been given for the release of an attachment.
It appears from the complaint that during the year 1911 this same plaintiff brought an action in the superior court of Los Angeles county against one John Howze, and that at about the same time, and before June 1, 1911, writs of attachment were issued from said court to the sheriffs of the counties of Los Angeles and Riverside, respectively, and certain real and personal properties belonging to said Howze levied upon by such sheriffs in said counties. On June 1, 1911, this plaintiff, who was also, as we have seen, the plaintiff there, released all of the property so attached from said attachment liens, and the defendant here, in consideration of such releases, executed and delivered to plaintiff a certain paper, alleged to be a bond, a copy of which, omitting the formal parts, is as follows:
"Whereas, the above-named plaintiff commenced an action in the superior court of the county of Los Angeles, state of California, against the above-named defendant [John Howze], claiming that there was due to said plaintiff from said defendant the sum of twenty-three thousand four hundred one and 76/100 ($23,401.76) dollars, or thereabouts, and thereupon an attachment issued against the property of said defendant as security for the satisfaction of any judgment that might be recovered therein; and certain property and effects of the said defendant have been attached and seized by the sheriff of the said Los Angeles county, under and by virtue of said writ; and whereas, the said defendant is desirous of having said property released from said attachment: Now, therefore, the undersigned, Fidelity & Deposit Company of Maryland, a corporation duly organized and doing business under and by virtue of the laws of the state of Maryland, and duly licensed for the purpose of making, guaranteeing or becoming a surety upon bonds or undertakings required or authorized by the law of the state of California, in consideration of the premises, and also in consideration of the release from said attachment of the property attached, as above mentioned, does hereby undertake in the sum of twenty-four thousand ($24,000.00) dollars, and promise that in case the plaintiff recover judgment in the action, defendant will, on demand, pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the interest and costs; the same to be paid in United States gold coin, if so required by the terms of the judgment."
The case was thereafter tried, and judgment went for plaintiff, who, not being satisfied therewith, appealed and secured a reversal thereof. While the appeal was pending, however, Howze died, a resident of Los Angeles county, leaving both real and personal property therein. In due time and by proper proceedings, according to the record, the Citizens’ Trust & Savings Bank, a corporation, and A. C. Howze were appointed administrators of the estate of John Howze, deceased, and letters of administration duly issued to them accordingly. Thereupon such administrators were substituted as parties defendant in the action then pending, for and in the place of the said John Howze, deceased. Upon a retrial of the action the court again found for the plaintiff, but in a much larger sum than previously had been determined to be due him, the judgment reciting, among other things, that
"It is ordered, adjudged and decreed that the plaintiff have and recover of the defendants [said administrators] the sum of $30,813.51, * * * to be paid by the said defendants out of the assets of the said estate of John Howze, deceased, in the due course of administration."
There was a motion for a new trial, which was denied. Whereupon the said administrators filed their notice of appeal to the Supreme Court from the order denying said motion, and from the judgment so entered, which appeal, because of failure to file the transcript in time, was in due time dismissed. Written demand was thereafter made by the plaintiff upon the administrators for the payment of this judgment, with which demand the latter have not complied, and, accordingly, the present action is brought.
The principal defense set up in the action before us is that the bond sued on here was and is a common-law obligation, and that since it was given two amended complaints were filed, thus exonerating the defendant from liability thereunder. The action was tried on the second amended complaint, and the court found for the plaintiff as claimed by him. The appeal is from the judgment on the judgment roll alone.
Two points only are urged for a reversal of the judgment: (1) That the complaint does not state a cause of action; and (2) that the amendment of the complaint after the execution of the undertaking varied the contract and exonerated the appellant. It is urged in support of the first point that the complaint discloses no breach of appellant’s obligation under the bond, and hence states no cause of action.
The complaint and findings here show that the defendant in the former action-- John Howze--died after the attachment therein was released, and before the judgment obtained in that action became final.
The most cursory perusal of the bond sued upon will disclose that it is not the statutory undertaking, but is a common-law bond. The condition upon which, by the express agreement of the surety, plaintiff’s right of recovery on the bond is made to depend, namely, the recovery by the plaintiff of a judgment in the action, has come to pass. Under the letter of the defendant’s undertaking it is liable, unless it can successfully be contended that the bond was but a substitute for the property attached, and that, because the death of the defendant in the former action dissolved the attachment (Myers v. Mott, 29 Cal. 359, 89 Am. Dec. 49), its liability on the undertaking has been discharged.
Where the bond is a statutory bond, i. e., where it is in the form prescribed by the statute, there may be good reason for holding that such a bond is a substitute for the attachment lien, and that whatever occurrence would have effected a dissolution of the attachment lien, had the bond not been given, has a like effect upon the undertaking, regarded as a statutory substitute for the attached property or for the attachment lien thereon.
The statutory bond is one whereby the surety undertakes that
"In case the plaintiff recovers judgment in the action, defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released, not exceeding the amount of such judgment." Section 555, Code Civ. Proc.
Such a bond is known as a delivery or forthcoming bond; whereas the common-law bond which was given in this action is that which sometimes is described as a bail bond.
Where the statutory undertaking is entered into there is an element of legal compulsion, i. e., the plaintiff in the attachment action and the officer who has levied the attachment, by compulsion of law, and nolens volens, must acquiesce in a release of the property from the attachment lien. Such an undertaking is not an unconditional undertaking for the payment of the judgment, in the event that the plaintiff in the action recover a judgment, but is an undertaking for the redelivery of the attached property, i. e., for its redelivery if the plaintiff recovers a judgment in the action, or, in default of such redelivery, payment to the plaintiff of the full value of the property released.
Where a delivery bond is given, i. e., a bond to return to the officer, upon request, the goods attached, in case final judgment is rendered in favor of the plaintiff, it can readily be seen that there is then some basis for a claim that whatever operates to dissolve an attachment lien should be deemed to have the same effect upon the bond given for the redelivery of the property. For, manifestly, if the undertaking is for the redelivery of the property, and if, for any legal reason, such, for example, as the death of the defendant in the action, an attachment lien upon the property so to be redelivered would have been dissolved if the bond had not been given, then redelivery of the property to the attaching officer would be of no benefit to the plaintiff in the attachment action. It is obvious, therefore, that where a delivery or forthcoming bond has been given--a bond that, by compulsion of law, necessarily releases the property from the custody of the attaching officer--there is some reason why the bond may be deemed to be a substitute for the attached property, and to be discharged by any event that would have worked a dissolution of the attachment lien had the property not been released from attachment by giving the statutory undertaking. Such, however, is not the case where, as here, the bond was not a delivery or forthcoming bond, and was not of such a character that a release of the property from the attachment must follow by compulsion of law. Mr. Drake, in his work on Attachment, seems to recognize the fact that, with respect to the effect upon the liability of the surety of an event that would have worked a dissolution of the attachment had the property not been released, there is a distinction between a delivery bond and a bail bond, such as was given in this action. Mr. Drake says that
"A dissolution of the attachment discharges the obligation of the surety on a delivery bond." Drake on Attachment, § 341b.
For these reasons we are of the opinion that if, in any case, an undertaking may be deemed to take the place of the property attached, so that whatever would have worked a dissolution of the attachment lien shall have a like effect upon the undertaking, it is when and only when the bond is a statutory bond, and is conditioned for the redelivery of the property. Here the surety has unconditionally obligated itself that in case the paintiff recover judgment in the action the defendant, on demand, will pay the plaintiff the amount of such judgment. The judgment has been recovered, and, under the letter of its obligation, the surety is liable. In principle the case does not seem to be distinguishable from Rosenthal v. Perkins, 123 Cal. 241, 55 P. 804, San Francisco Sulphur Co. v. æ tna Indemnity Co., 11 Cal.App. 695, 106 P. 111, and McCombs v. Allen, 82 N.Y. 114.
As to the second point urged, we think no extended discussion necessary. The amendment of the complaint in the Howze Case was made as a matter of right, and before the hearing of the demurrer to the original complaint in that action. There was a demurrer to the amended complaint, which was sustained. Thereupon a second amended complaint was filed. Upon the issues formed the case was tried and went to judgment.
The subject-matter of that action was two contracts between Turner and Howze, in which the latter, among other things, agreed to subdivide certain property. There was, in the amendment, no change whatever in the contracts themselves, but there was a change in the allegations of the complaint setting forth more in detail the character and extent of the breaches, and enlarging somewhat the amount claimed as damages therefor. There is no new and different cause of action stated. Such an amendment is permissible. Frost v. Witter, 132 Cal. 421, 64 P. 705, 84 Am. St. Rep. 53; Ruiz v. Santa Barbara Gas, etc., Co., 164 Cal. 188, 128 P. 330; Doolittle v. McConnell, 178 Cal. 697, 174 P. 305; Rauer’s Law, etc., Co. v. Leffingwell, 11 Cal.App. 494, 105 P. 427; Born v. Castle, 22 Cal.App. 282, 134 P. 347; Third Street Imp. Co. v. McLelland, 23 Cal.App. 369, 137 P. 1089; Barr v. Southern California Edison Co., 24 Cal.App. 22, 140 P. 47; White v. Deering, 38 Cal.App. 516, 179 P. 401.
Under these conditions there was no release of the security or exoneration of the bond.
Judgment affirmed.
We concur: FINLAYSON, P. J.; WELLER, J.