Stewart v. Justice's Court

BARNARD, P. J.

On April 20, 1933, one Baker brought an action against these petitioners in the respondent Justice’s Court and secured a writ of attachment by delivering to the Justice of the Peace his own personal check for $50 in lieu of a written undertaking. A motion to discharge this writ, on the ground that no sufficient undertaking had been filed, was denied on May 13, 1933, the respondent justice having theretofore cashed the check. On May 25, 1933, upon the stipulation of the petitioners, judgment was entered against them. On that day notice was given of another motion to discharge the attachment on the same ground as before, which motion was denied on May 31, 1933. On June 2, 1933, the petitioners filed in the Superior Court of Tulare County a petition for a writ of mandate compelling the respondent justice to enter an order discharging the attachment. In due course, judgment was entered ordering that such a writ of mandate issue, and from this judgment this appeal was taken.

The sole question presented is whether the delivery of a check for $50 to a justice of the peace, which was subsequently cashed by the justice, constituted a sufficient undertaking or

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security for the issuance of a writ of attachment under the statutes which were then in force.

Section 867 of the Code of Civil Procedure then provided that before issuing such a writ the justice must require a written undertaking with two or more sufficient sureties in a sum not less than $50. Section 926 of that code then provided that in all civil eases in a justice’s court, where an undertaking was required, an equal sum of money in United States gold coin might be deposited with the justice and should be taken as security in place of the undertaking.

The purpose of these statutes was to furnish security in a given amount to a party whose property was to be attached. Illustrating and carrying out this purpose, and to prevent the discharge of an attachment because of a mere technical insufficiency in the undertaking, section 558 of that code provides that upon an application for the discharge of such a writ, as improperly or irregularly issued, the same shall not be discharged if at or before the hearing of the application the undertaking in question is amended so as to conform to the requirements.