Culley v. Cochran

California Court of Appeal Jul 16, 1932 No. Docket No. 899.Published

Before: Barnard

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Holding. The court held that an indemnifier on an attachment bond has the right to defend an action in the name of the original defendant without being substituted as a party, and that the trial court erred in ordering the indemnifier's substitution as the sole defendant.

Issues

Whether an indemnifier on an attachment bond is required to be substituted as a party to defend the action.
Whether the order substituting the indemnifier as the sole defendant and discharging the original defendant was justified by the record.
Whether an order substituting a party and discharging the original defendant is an appealable order.

Disposition. reversed

Quotations verified verbatim against the opinion

“The whole purport of our decision was to the effect that the respondent Ross had a right to defend the action without intervening and without being substituted.”

“There is no provision anywhere that he must be made a party to the action, by substitution or intervention, before he may make such defense.”

“The order appealed from is reversed.”

[731]

BARNARD, P. J.

On a former appeal in this action this court reversed the judgment on the ground that an indemnifier on an attachment bond had been denied the right to participate in the trial and to defend the action after having been served with notice in accordance with section 1055 of the Code of Civil Procedure, and upon the ground that such a person had the right to defend the action without being substituted and without intervening. Most of the facts are set forth in the former opinion

(Culley

Cochran,

107 Cal. App. 525 [290 Pac. 484, 486]) and need not be here repeated.

After the filing of the

remittitur,

J. Edgar Ross, the indemnifier in question, moved the court for an order substituting him as sole defendant in the action in the place and stead of the constable, who was named as sole defendant in the complaint. This motion was granted and an order entered substituting Ross for the constable as sole defendant and discharging the said constable from all obligation. From this order the plaintiff in the action has taken this appeal.

It is contended that the showing made in support of the motion was not sufficient to justify the order of substitution. The record discloses that the notice of motion and the order were both based entirely upon the statement that this court, upon the former appeal, had decided that Ross was entitled to be substituted for the original defendant in the action. This court did not so intend to decide, and could hardly have done so, as such an issue was not then presented. Apparently a confusion has arisen because in our former opinion we used this language: “But we think Ross had a right either to intervene, to substitute himself as a party, or to proceed with the action in the name of the original defendant.” While that was apparently true, so far as the facts appeared in the record then before tis, it was by no means the holding of the court nor was it thus held that Ross should be substituted as sole defendant. While the language we there used is justly subject to criticism as being too broad and unnecessary to the decision, considered in connection with the rest of the opinion, it can hardly be taken as directing the entry of such an order as the one now appealed from. Immediately following the

Culley v. Cochran

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BARNARD, P. J.

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