Kanouse v. Brand

SHAW, J.

This is an action to recover from the sureties on an undertaking given to procure the release of property levied upon under a writ of attachment.

It is alleged in the complaint that one H. J. Stocker, being indebted to the plaintiff, the latter, in June, 1907, brought suit to recover thereon, and procured to -be issued therein a writ of attachment under which certain property of Stocker, situated in Los Angeles and Ventura counties, was attached by the sheriffs of said counties; that thereafter, in consideration of the release of said property so attached, the defendants herein as sureties made and executed to plaintiff an undertaking in consideration of which the property so held by the sheriffs under and by virtue of said writ of attachment was released therefrom by this plaintiff.

This undertaking, which is set out in the complaint, after reciting the commencement of the action by plaintiff against Stocker, the issuance of the writ of attachment, and that the sheriff of Los Angeles county had, by virtue thereof, attached certain property of Stocker which the latter desired to have released therefrom, provides: ‘1 Now, therefore, we, the undersigned, residents and freeholders in the county of Los Angeles,

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in consideration of the premises, and also in consideration of the release from said attachment of the property so attached, as above mentioned, do hereby jointly and severally undertake in the sum of sixteen hundred and no-100 dollars, and promise that in case the plaintiff recover judgment in the action, defendant will, on demand, pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage, interest and costs; the same to be paid in United States gold coin, if so required by the terms of the judgment. ’ ’

Defendant Goldschmidt filed a general demurrer which was by the court overruled. No answer was filed, and judgment was rendered against him and his codefendant, who had suffered default, in accordance with the prayer of the complaint.

Appellant contends that the complaint fails to state a cause of action, in that it does not appear therefrom that an execution had been issued and returned unsatisfied, as required by section 552, Code of Civil Procedure, which provides: “If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 540 or section 555, or he may proceed, as in other cases, upon the return of an execution.” The effect of the provision just quoted is to declare that no action for the recovery upon an undertaking given pursuant to the sections of the code specified therein shall be prosecuted unless an execution has been issued and returned unsatisfied, in whole or in part.