Prescott v. Farquhar

BARNARD, P. J.

The plaintiffs brought an action in claim and delivery against one Ray Dillingham for the purpose of recovering the possession of certain fixtures installed and used in operating a service station, consisting of pumps, storage tanks and other accessories. A deputy sheriff served the papers in that action on Dillingham, took possession of the property and, some hours later, redelivered the property to that defendant after receiving . a bond executed by the defendants in this action. This bond recited that whereas the officer did on a day named “take from possession of the defendant or proceeded to take from the defendant’’ certain property which is described and, “whereas the said defendant desires to have the said property returned to him by the said J. A. Rivera. Now therefore, we, the undersigned, ... in consideration of the prem

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ises and of the redelivery of said property to the defendant do hereby jointly and severally undertake . . . and promise to the effect that we are bound in the amount herein stated, for the delivery of said property to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant.” Attached to the bond was an affidavit, signed by each of these defendants, to the effect that he was worth the amount named in the bond over his debts and liabilities.

The plaintiffs recovered a judgment against Dillingham which was only partly satisfied and, after demand and refusal to pay, brought this action against the bondsmen to recover the unpaid balance. The court found in all respects in favor of the plaintiffs except that it was found that the deputy sheriff “never took or seized the personal property described in plaintiffs’ amended complaint by virtue of said proceedings, or otherwise, but that J. A. Rivera, acting as such deputy, appeared at the place of business of Ray Dillingham for the purpose of taking possession of said property but that possession was never actually so taken, and that the defendants herein executed the bond set out in and marked Exhibit A in plaintiffs’ Amended Complaint, and delivered the same to the said J. A. Rivera, but that the sureties on said undertaking, the defendants herein, did not give notice to the plaintiffs of their intention to justify upon said bond and the said defendants herein did not justify upon said bond as provided in section 515 of the Code of Civil Procedure of the State of California, or otherwise; and the Court further finds that the justification of the defendants as such sureties was not waived by the plaintiffs.” The court thereupon drew the conclusion that the plaintiffs were entitled to take nothing in this action and entered judgment in favor of the defendants, from which judgment the plaintiffs have appealed.