Carter v. Agricultural Insurance Co.

BROWN (Gerald), P. J.

Defendant Agricultural Insurance Company, surety on an attachment bond issued on behalf of co-defendants C. N. Palmer, Jr., and Betty Ann Palmer, appeals a judgment finding the Palmers had wrongfully and

[806]

maliciously attached assets of plaintiffs George M. Carter and Lorraine D. Carter, and holding the surety, as. well as the Palmers, liable to the Carters for both compensatory and punitive damages. The Carters also appeal claiming an inadequate award of damages by the court. The Palmers have not appealed.

The Carters’ appeal deserves no consideration as inadequacy of damages may not be raised for the first time on appeal, but must first be presented to the lower court on a motion for new trial

(Jenkins

v.

Dahnert,

202 Cal.App.2d 567, 568 [21 Cal.Rptr. 15];

Schmidt

v.

Macco Constr. Co.,

119 Cal.App.2d 717, 721 [260 P.2d 230]). No motion for new trial was made in this ease.

The surety’s appeal presents one issue: whether a surety under Code of Civil Procedure, section 539 may be held to respond for punitive damages awarded for malicious attachment by the attaching party.

Finding the Palmers’ attachment of the Carters’ assets to have been malicious as well as wrongful, the trial court awarded compensatory damages of $637.14 and punitive damages of $4,500 against both the Palmers and their surety. The face amount of the attachment bond is $24,500. There is no contention the findings of wrongfulness and malice lack support in the evidence. There is no contention the surety maliciously participated in procuring issuance of the attachment.

The attachment bond here was issued under Code of Civil Procedure, section 1041, to cover the statutory obligations set forth in Code of Civil Procedure, section 539. The extent of the surety’s liability is limited by section 539.