O'Hair v. United States Fidelity & Guaranty Co.

SPENCE, J.

This is an appeal by defendant from a judgment in favor of plaintiff. The action was one brought upon a bond given under section 540 of the Code of Civil Procedure.

Said bond was executed in 1922 to obtain the release of an attachment in an action entitled

P. E. O’Hair

v.

Pacific City,

[308]

a corporation. Judgment was entered in favor of the plaintiff in that action on September 7, 1923. Defendant therein took an appeal, but no undertaking on appeal was filed. Shortly thereafter the plaintiff in said action died.- In 192-7, plaintiff herein was appointed administrator of the estate of P. B. O’Hair and was substituted as plaintiff in the action above mentioned. In 1928, the appeal in said action was dismissed and shortly thereafter execution was issued and returned unsatisfied. In 1931, the plaintiff commenced this action to recover upon said bond.

It is the contention of appellant that the cause of action was barred by the provisions of section 337 of the Code of Civil Procedure but in our opinion this contention cannot be sustained. It is well settled that ordinarily the right of action upon such bond accrues when execution has been returned unsatisfied (Code Civ. Proc., sec. 552;

Hutchinson

v.

United States etc. Co.,

58 Cal. App. 573 [209 Pac. 249];

Bailey

v.

Aetna Indemnity Co.,

5 Cal. App. 740 [91 Pac. 416]), and in the present case, the action was commenced within four years after that time.

Appellant points out, however, that no undertaking on was filed in the other action and respondent and his predecessor could have caused execution to be issued at any time after the entry of judgment in 1923. (Hutchinson v.