Davis v. Fidelity & Deposit Co.

WOOD, J.

Defendant’s demurrer to the complaint, upon the ground that the two causes of action therein were barred by the statute of limitations, was sustained and plaintiff was given 10 days within which to amend. Plaintiff failed to amend the complaint within said time, and upon motion of defendant a judgment of dismissal was entered. Plaintiff appeals from the judgment.

It was alleged in the first cause of action that on January 8, 1936, one Williams commenced an action against the plaintiff herein (Davis), being action No. 397192 in the Superior Court of Los Angeles County; on February 27, 1936, the defendant herein (Fidelity and Deposit Company) executed and filed in said action No. 397192 an undertaking on attachment whereby it promised that if defendant (Davis) recovered judgment in said action the plaintiff (Williams) would pay all damages that the defendant (Davis) might sustain by rea

[14]

son of the attachment; a copy of said undertaking is attached to the complaint herein; on February 28, 1936, “an attachment” was issued by said court; on said day the Sheriff of Los Angeles County, by virtue of said writ of attachment and pursuant to direction of said Williams, “levied upon certain personal property belonging to this plaintiff” consisting of $22,493.96 on deposit in a bank; on January 24, 1938, judgment in said action was rendered in favor of the defendant therein (plaintiff herein), and said judgment was entered on said day; thereafter the plaintiff therein filed a notice of appeal from said judgment; the appeal therein was pending thereafter until May 2, 1947, when the appeal was dismissed on stipulation of the parties and the remittitur was filed in said superior court; said sum of money was held under said writ of attachment from February 28, 1936, to February 1, 1938, and on said last mentioned day said sum was released to the defendant therein (plaintiff herein); by reason of said attachment this plaintiff (Davis) sustained damages in the sum of $3,017.94, being interest on said sum at 7 per cent per annum during the time it was held under said writ; and that no part of said damage has been paid.

It was alleged in the second cause of action that on January 8, 1936, the defendant herein (Fidelity and Deposit Company) executed and filed in the superior court in action No. 397192 an (other) undertaking on attachment whereby it promised that if defendant recovered judgment in said action the plaintiff therein (Williams) would pay all damages that the defendant therein (plaintiff Davis herein) might sustain by reason of the attachment; a copy of said undertaking is attached to the complaint herein; on January 8, 1936, a writ of attachment was issued by said court; on said day the Sheriff of the City and County of San Francisco, by virtue of said writ of attachment and pursuant to direction of said Williams, “levied upon certain personal property belonging to this plaintiff” consisting of $4,370.52 due from an insurance company to this plaintiff (Davis) under a claim based upon a fire insurance policy; said sum of money was held under said writ of attachment from February 5, 1936, to March 23,1938, and on said last mentioned day it was released and paid to this plaintiff; by reason of said attachment plaintiff herein sustained damages in the sum of $652.66, being interest on said sum at 7 per cent per annum during the time it was held under said writ; and that no part of said damages has been paid.