Francis v. Superior Court

FINLAYSON, P. J.

This is an original application for a writ of prohibition directed to the superior court for Kern County, and the Honorable Howard A. Peairs, Judge,

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commanding and directing them to desist from hearing a motion to increase the amount of an undertaking on attachment which had been given in an action wherein the petitioner here is the plaintiff and L. W. Lowell and others are the defendants. To the alternative writ of prohibition, issued out of this court, respondents have made a return which petitioner has not seen fit to traverse.

The petition and the return thereto disclose the following facts: Petitioner commenced an action against L. W. Lowell and others to recover $11,250, alleged to be due on a contract. Petitioner, as the plaintiff in that action, caused an affidavit for attachment to be filed in the superior court; at the same time the clerk of that court fixed the amount of the undertaking on attachment at $500, as he was authorized to do by section 539 of the Code of Civil Procedure, whereby it is provided that the clerk, before issuing the writ, shall require an undertaking on the part of the plaintiff in a sum not less than $200 and not exceeding the amount claimed by the plaintiff. Petitioner gave an undertaking in the amount required by the clerk—$500—and thereupon the writ of attachment was issued. Acting under this writ, the sheriff, on March 11, 1922, levied upon certain debts then due and owing to the defendants in that action by the Midway Northern Oil Company, which debts were sufficient to satisfy plaintiff’s demand for $11,250, with interest thereon at seven per cent per annum from the date of the commencement of the action. The return, which, as we have stated, has not been traversed by petitioner, further alleges that it will take approximately three years before the action in which the attachment was issued can be finally concluded; that the interest which will accrue on the moneys or debts garnisheed by the sheriff, together, with costs, will amount to approximately $2,500; that if the defendants in that action shall prevail the sum of $500 named as the penalty of the undertaking on attachment will be entirely inadequate to compensate them for the damages which they will sustain by reason of the attachment; and that if, pending the final outcome, disaster should overtake the oil company whose indebtedness to the defendants was thus levied upon and garnisheed, the full amount of $11,250 so tied up by the