Superior Collectors, Inc. v. Puro

California Court of Appeal Jul 7, 1958 No. Civ. 22800Published

Before: Fox

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Holding. The court held that the trial court properly discharged the writ of attachment and the subsequent alias writ because the plaintiff failed to comply with a court order to increase the attachment undertaking to $3,500, and the substitute bond provided was inadequate.

Issues

Whether an order increasing an attachment undertaking is effective when made.
Whether a $2,500 bond constitutes compliance with a court order requiring an undertaking of $3,500.
Whether the issuance of an alias writ based on an inadequate undertaking constitutes an abuse of process.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that the court has inherent power to require an increase in the amount of an undertaking on a writ of attachment.”

“The order of the court discharging the alias writ of attachment was proper because that writ was based upon the same undertaking which the court had already held to be inadequate.”

FOX, P. J.

Plaintiff brought this action to recover $5,000 on a promissory note. It caused a writ of attachment to be

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issued and levied on defendant’s Cadillac. The bond was in the amount of $1,750. Defendant made a motion to increase the undertaking on the attachment. On December 12, 1956, the court granted defendant’s motion and ordered the undertaking increased from $1,750 to $3,500. Plaintiff having failed to comply with the order, defendant, on December 31, 1956, served notice of motion to discharge the attachment. The matter was set for hearing on January 11, 1957. Plaintiff filed nothing in opposition to the motion. But, on January 10th, plaintiff filed another undertaking in the amount of $2,500. Counsel for plaintiff did not appear at the hearing on January 11th, but the court was informed that another bond in the amount of $2,500 had been filed. Following the hearing, the court ordered the writ of attachment discharged on the ground that there had been a failure to comply with the previous order of the court. On January 15th plaintiff caused to be issued a “first alias” writ of attachment, and the sheriff was ordered to relevy on the automobile which was still in his possession. This writ was based on the $2,500 undertaking previously referred to. Thereupon the sheriff sought instructions from the court as to the disposition of the car. The matter was heard on February 11, 1957. The court discharged the alias writ and ordered the sheriff to release defendant’s car. Plaintiff has appealed from the order of January 11th discharging the writ of attachment and from the order of February 11th discharging the alias writ.

Plaintiff’s first contention is that the court erred in discharging the writ at the January 11 hearing for noncomplianee with the order increasing the undertaking on the ground that such order was not final. There is no merit whatever in this contention. Such an order is effective when made. And it is well settled that the court has inherent power to require an increase in the amount of an undertaking on a writ of attachment.

(Murillo

Toole,

47 Cal.App.2d 725, 727-728 [118 P.2d 895], and cases cited therein.)

Superior Collectors, Inc. v. Puro

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FOX, P. J.

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