Robinson v. Fidelity & Deposit Co.

SPENCE, J.

The above-entitled actions were brought to recover upon two undertakings which were furnished in an action for injunctive relief entitled

London

v.

Robinson and Moren.

One of the undertakings in the sum of $1,000 was furnished upon the granting of a restraining order and the other undertaking in the sum of $3,000 was furnished upon the granting of a preliminary injunction. In said action for injunctive relief, a permanent injunction was thereafter granted but the decision was reversed on appeal.

(London

v.

Robinson et al.,

94 Cal. App. 774 [271 Pac. 921].) Upon a second trial of that action, a nonsuit was granted and that decision was affirmed on appeal.

(London

v.

Robinson et al.,

122 Cal. App. 232 [9 Pac. (2d) 880].) The owner of the premises, L. B. Robinson, and the contractor, G. Moren, then filed separate actions seeking to recover damages against the surety on the two undertakings. Said actions were consolidated for the purpose of trial and the cause was tried before the court sitting without a jury. On December 14, 1933, a judgment was entered in favor of plaintiffs upon findings of fact and conclusions of law theretofore filed. Upon motion for a new trial, said motion was denied, but the trial court filed “Findings of Fact and Conclusions of Law as amended on Motion for New Trial” and entered a modified judgment on March 6, 1934, based upon said amended findings. By said last-mentioned judgment plaintiff, G. Moren, recovered the sum of $653.13 upon the undertaking in the sum of $1,000, and plaintiffs G. Moren and L. B. Robinson jointly recovered a judgment for the full amount upon the undertaking in the sum of $3,000. Defendant has appealed from the judgment entered on December 14, 1933, and also from the judgment entered on March 6, 1934.

One of the points urged on this appeal is that the trial court erred upon the motion for new trial in filing

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