Dunlop v. Farmer

California Court of Appeal Dec 11, 1923 No. Civ. No. 2638.Published

Before: Finch

AI Brief

AI-generated · verify before citing

Holding. The court affirmed a judgment against sureties on an attachment undertaking, holding that technical pleading defects regarding demand for payment were harmless where no miscarriage of justice occurred and that evidence supported the trial court's findings on ownership and damages.

Issues

Whether a complaint against sureties on an attachment undertaking is fatally defective for failing to allege a demand for payment on the principal.
Whether the trial court's finding of ownership of the attached property is supported by conflicting evidence.
Whether the evidence sufficiently established the reasonable value of the use of the attached property during the period of detention.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant was not deceived or misled by the imperfections of the pleading, and under the oft-cited sections of the Code and Constitution, no miscarriage of justice having resulted, the error should be disregarded.”

“Under the foregoing conflicting evidence the finding of the trial court that plaintiff was the owner of the automobile cannot be disturbed on appeal.”

“Evidence of a like character has been held sufficient to support a judgment for the reasonable value of the use of an automobile during its detention under attachment.”

Synopsis

APPEAL from a judgment of the Superior Court of Tulare County. W. B. Wallace, Judge. Affirmed.

The facts are stated in the opinion of the court.

FINCH, P. J.

The defendant Farmer, in an action brought by him against plaintiff, caused an attachment to be levied on an automobile belonging to the latter. At the time of the issuance of the attachment Farmer, as principal,

[692]

and defendants Reed and Davis, as sureties, entered into an undertaking in the sum of $500 to the effect that “if said defendant recovers judgment said plaintiff will pay all costs that may be awarded to the defendant, and all damage which he may have sustained by reason of said attachment, not exceeding the sum of five hundred ($500.00) dollars.” Dunlop was given judgment in that action and the automobile was restored to him. Thereafter this action was commenced to recover damages in the sum of $500, the plaintiff alleging that he had been damaged in the sum of $1,814 by reason of the wrongful attachment but praying for recovery of $500 only. Plaintiff was given judgment for $500 and costs of suit. From this judgment defendants appeal.

[1]

The original complaint did not allege that a demand had been made on Farmer for payment of the alleged damages or that the same had not been paid. The defendants filed general demurrers to the complaint and the same were overruled. The undertaking on the part of the sureties was that the plaintiff in the attachment suit would pay the damages sustained by reason of the attachment and the complaint, as against the sureties, was defective for failure to allege a demand made on Farmer or that the alleged damages were unpaid. The foundation of the suit against the sureties was the breach of the obligation of the plaintiff in the attachment suit to pay such damages and the breach should have been alleged. (3 Cal. Jur. 555;

Atlas Development Co.

National Surety Co.,

190 Cal. 329 [212 Pac. 196] ;

Swain

Los Angeles Morris Plan Co.,

60 Cal. App. 667 [213 Pac. 703].) By amended complaint, filed by permission of the court after the close of plaintiff’s case, the plaintiff alleged that no part of the damages claimed had been paid but did not allege a demand for payment. The evidence shows that payment was demanded before the action was commenced. An examination of the transcript on appeal in the case of

Dunlop v. Farmer

AI Brief

Synopsis

FINCH, P. J.

More from California Court of Appeal

Related research

AI Brief