Murillo v. Toole

WEST, J.

pro

tem.

This action was instituted on October 12, 1940, by plaintiff and appellant in two causes of action, the first for the recovery of $14,697, together with interest at 7 per cent from April 8, 1940, and costs alleged to be due from defendants and respondents for work, labor, materials and equipment furnished respondents in connection with the leveling of a tract of land in Riverside County; and the second, for the foreclosure of a mechanic’s lien on said land.

[727]

With the complaint plaintiff filed his affidavit for attachment which recited “that defendants herein are indebted to me in the sum of $14,697 lawful money of the United States,” and was in the usual form of such affidavits. A writ of attachment was procured for $14,697, besides interest and costs of suit. The undertaking for attachment filed by plaintiff to obtain the writ was in the sum of $200. Defendants appeared and moved the court for an order discharging the attachment or in lieu thereof increasing the undertaking to $14,697. This motion was supported by an affidavit made by one of the defendants, which affidavit recited that the damages sustained by reason of the attachment might exceed $15,000. The motion was granted in the alternative as follows:

“It is ordered that the defendants’ motion to discharge attachment or to increase the undertaking on attachment herein be granted as follows:

“Within ten days from the date hereof, plaintiff shall increase the amount of his bond to the sum of $15,000.00 and upon the failure to file a good and sufficient bond, in said sum, within said time, the attachment herein will be discharged. ’ ’

Prior to the termination of the ten-day period plaintiff served and filed a motion to vacate the alternative order and upon the same coming on for hearing the court denied plaintiff’s motion to vacate, and the ten-day period having elapsed and plaintiff not having filed his increased undertaking, an order was made discharging the attachment. This appeal followed and was taken (1) from the order increasing the amount of the undertaking or in the alternative discharging the attachment; (2) from the order denying plaintiff’s motion to vacate the alternative order; and (3) from the order discharging the attachment upon failure to file the increased undertaking.