Prescott v. Farquhar

California Court of Appeal Mar 4, 1936 No. Civ. 1593Published

Before: Scovel

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Holding. Sureties on a redelivery bond are barred by the doctrine of res judicata from challenging the legality of the initial property seizure, as the underlying judgment against the principal necessarily established the validity of the seizure and redelivery. Furthermore, sureties cannot avoid their obligations by claiming a failure to justify the bond when they have already secured the redelivery of property through that instrument.

Issues

Whether sureties on a redelivery bond are estopped from challenging the legality of the initial seizure of property after a final judgment has been rendered against the principal.
Whether sureties may avoid liability on a redelivery bond by asserting their own failure to justify the bond as required by statute.

Disposition. reversed

Quotations verified verbatim against the opinion

“the court in the claim and delivery action having rendered judgment against the defendant for depreciation of the property after its redelivery, must have found as the basis upon which to render such judgment that the property was seized”

“the matter is now res judicata in so far as the defendant in that action and the sureties on his redelivery bond, the respondents herein, are concerned.”

“having secured a redelivery by means of this bond, the respondents should neither be heard to say there was no taking of possession which necessitated a redelivery nor should they be permitted to escape the plain obligation they have assumed”

SCOVEL, J.,

pro

tem.

In about the month of September, 1930, plaintiffs herein filed an action in claim and delivery against one Ray Dillingham, praying for the recovery of cer-' tain personal property then in the possession of said defendant or for the value thereof in case a delivery could.not be had, together with damages for the detention thereof.

The plaintiffs in said action made the affidavit, requisition and bond as provided in sections 510, 511 and 512 of the Code of Civil Procedure. These documents were delivered to J. A. Rivera, constable of Redlands Township, who was also a special deputy sheriff. Rivera went to the property upon which the personal property described in the claim and delivery action was located and told Dillingham that he was taking possession of the property. Dillingham stated that he would put up a redelivery bond to retain possession of the property. This bond was thereafter given by him to the constable, the sureties thereon being the defendants in the action from which this appeal is taken. Plaintiffs in the claim and delivery action recovered judgment for the return of the property or the value thereof if delivery of said property could not be had, “together with the sum of $600 damages suffered by the plaintiff by way of depreciation in the value of said property since the commencement of the action”. In its findings of fact, upon which such judgment was based, the court found, among other things, “that the property described in plaintiffs’ complaint was regularly taken by the sheriff of San Bernardino county by virtue of the written requisition, affidavit and undertaking furnished by the plaintiff and that within five days thereafter the defendant filed a redelivery bond and that the said property was redelivered to the defendant, Ray Dillingham, who continued to hold and use the same until the date of the trial herein”.

The defendant in said action, having failed to pay the judgment for $600 damages for depreciation in the value of the property, plaintiffs thereupon filed this action against the defendants herein, sureties upon the redelivery bond.

At the first trial hereof, judgment was entered in favor of the defendants, from which an appeal was taken, and the judgment reversed, this appeal being reported in

Prescott et al.

Farquhar et al.,

135 Cal. App. 469 [27 Pac. (2d)

Prescott v. Farquhar

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SCOVEL, J.,

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