Ferris v. Independence Indemnity Co.

California Court of Appeal Jun 7, 1932 No. Docket No. 877.Published

Before: Scovel

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Holding. A cause of action against a surety on a claim and delivery bond accrues immediately upon the entry of an enforceable judgment in the trial court, even if that judgment is pending appeal, provided no stay bond was filed.

Issues

Whether an action on a claim and delivery bond is premature if filed while an appeal of the underlying judgment is pending.
Whether a judgment-roll is admissible as evidence of a claim against a surety before the underlying judgment has become final.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We are of the opinion that the present action is not upon the judgment but upon the bond”

“a return was “adjudged” and a sum “recovered” within the intendment of the statute and the bond when a judgment to such effect was entered in the trial court that was enforceable against the plaintiff.”

SCOVEL, J.,

pro

tem.

Prior to the filing of the complaint involved in this appeal, the United States of Mexico had filed an action in claim and delivery in the Superior Court of San Diego County against Peter Rash seeking recov

[155]

ery of a patrol boat known as the “Tecate.” In that action Bask answered setting up a lien for repairs on the boat. Upon filing the complaint the United States of Mexico filed with the sheriff of San Diego County a claim and delivery bond executed by the Independence Indemnity Company, defendant here, conditioned for the prosecution of the action, return of the boat if return should be adjudged, and the payment of all moneys recovered in the action, whereupon the boat was delivered to the United States of Mexico. At the trial judgment was entered in the superior court in favor of Peter Bask wherein it was found he was entitled to the sum of $12,961.61 for the repairs on the boat and to a lien thereon by virtue thereof, together with $463.62 damages and costs in the sum of $65; and that by virtue of said lien he was entitled to possession of the boat. It was therefore ordered that the United States of Mexico return the boat to Peter Bask, or, in case return could not be had, pay him the sums mentioned. The judgment was signed on May 10, 1930, and filed on May 12, 1930. A few days later and prior to any appeal, the present action was filed by plaintiffs herein, Alda M. Ferris claiming a partial assignment of the judgment, alleging the boat had not been returned and asking judgment against defendant as surety on the claim and delivery bond, for the amount of the judgment above.

After the filing of this action an appeal was perfected by the United States of Mexico, plaintiff in the first action, no stay bond, however, being filed. The Independence Indemnity Company answered in the present suit alleging that the action was premature by reason of the pending appeal in the case of

United States of Mexico

Rask,

(Civil No. 471) 118 Cal. App. 21 [4 Pac. (2d) 981], and asserting that the court was without jurisdiction in that action to render a judgment against a foreign power or to adjudicate a maritime lien. The action came on for trial and in support of their complaint plaintiffs offered in evidence the judgment-roll in the case of

Ferris v. Independence Indemnity Co.

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SCOVEL, J.,

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