Urich Oil Co. v. Crown Discount Department Stores

California Court of Appeal Oct 23, 1973 No. Civ. 41049Published

Before: Roth

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Holding. The court held that a defendant who enters into a stipulated judgment after the underlying attachment procedure is declared unconstitutional is estopped from seeking to dissolve the attachment and exonerate the bond, as the plaintiff relied on the collectibility of the judgment in agreeing to the compromise.

Issues

Whether an order dissolving an attachment and exonerating a bond is an appealable order.
Whether a party can raise the expiration of an attachment under Code of Civil Procedure section 542 for the first time on appeal.
Whether a defendant is estopped from dissolving an attachment and exonerating a bond after entering into a stipulated judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The order exonerating the bond is the natural and inevitable consequence of the order releasing the attachment and the order dissolving the attachment is appealable.”

“The record shows implicitly, however, that respondent by its conduct led appellant to believe it had compromised for a judgment that appeared to be in all respects collectible.”

“The order dissolving the attachment and exonerating the bond is reversed”

Opinion

ROTH, P. J.

On April 26, 1968, Urich Oil Company (appellant) sued Crown Discount Department Stores (respondent) for breach of contract and currently attached the bank account. The attachment was released upon the filing of a bond by Seaboard Surety Company (surety) which provided that surety would pay to appellant the amount of any judgment appellant recovered up to $33,500.

The attachment procedure of which appellant availed itself was on August 26, 1971 held unconstitutional.

(Random

Appellate Department

(1971) 5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13].)

At a mandatory settlement conference held on November 24, 1971, the parties compromised appellant’s claim by a stipulation to enter judgment in favor of appellant for $22,000. On February 23, 1972, respondent was served with appellant’s notice of motion and motion for judgment. The next day respondent served appellant with a notice of motion and order to discharge and release levy of attachment and exonerate undertaking.

On March 6, 1972, the court entered judgment in favor of appellant in the sum of $22,000 plus interest and attorney’s fees. At the same time respondent’s motion was submitted, and on March 13, 1972, the court granted the motion to dissolve the attachment and exonerate the bond.

Appellant appeals from the order dissolving the attachment and exonerating the bond.

Preliminarily procedural issues are raised which we dispose of before reaching the primary and decisive question of the propriety of the court’s order dissolving the attachment and exonerating the bond.

[746]

Appellant initially asserts that respondent cannot defend this appeal since its corporate powers were suspended for a failure to pay taxes.

(Laurel Crest, Inc.

Urich Oil Co. v. Crown Discount Department Stores

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ROTH, P. J.

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