Morneault v. National Surety Co.

JAMES, J.

This is an appeal from a judgment entered in favor of the plaintiff and against the defendant for the principal sum of five hundred dollars. The alleged liability of the defendant to the plaintiff arose by reason of the following facts: On about the 15th of April, 1915, one Dennis commenced an action against respondent herein, seeking to recover the sum of one thousand dollars. Dennis took out a writ of attachment in the action, giving a bond in the sum of five hundred dollars to indemnify the plaintiff for any damages which he might suffer by reason of the issuance of the writ. The undertaking on attachment was in the usual form and was conditioned that “the said plaintiff will pay all costs that may be awarded to the said defendant and all damages

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which the said defendant may sustain by reason of the said attachment, not exceeding the sum of five hundred and no'/100 ($500.00) dollars. ...” Upon receiving the writ of attachment the sheriff proceeded to levy upon an automobile owned by respondent here, who was the defendant in the case mentioned, and the autoipobile was held under attachment from April 16, 1915, to August 2d of the same year. On the latter date judgment was entered in favor of this respondent in the attachment suit, which judgment was that the plaintiff should take nothing and that' defendant recover costs in the sum of $20.75. The costs were paid and the judgment was thereby satisfied. This action, brought to recover from the surety on the attachment bond damages alleged to have been sustained by the defendant in the attachment suit by reason of the attachment, was commenced on October 25, 1915.

■- Appellant’s first point is that this action cannot be maintained because the tim^ allowed within which an appeal might be taken from the judgment in the attachment suit had not expired when the complaint of this plaintiff was filed. We have already noted that the judgment in the attachment suit was in favor of the defendant for costs and that the costs were paid and the judgment satisfied. We do not think that after voluntarily satisfying the judgment the plaintiff in the attachment suit could have maintained an appeal from that judgment. It he could not, then the judgment was final upon satisfaction being entered. Section 1049 of the Code of Civil Procedure provides thjat an action is deemed to be pending from the time of its commencement until its final determination upon appeal, “or until the time for appeal has passed, unless the judgment is ¡sooner satisfied.”