Colma Vegetable Assn. v. Superior Court

KNIGHT, J.

This is an application for a writ of prohibition. The material facts alleged in the petition and in the affidavit attached thereto are not disputed, and may be stated as follows:

The petitioner, Colma Vegetable Association, a corporation, brought suit in the superior court in and for San Mateo County to recover from G. Bonetti and G. Bonetti and Company, a copartnership, the sum of $1,000 as liquidated damages for the alleged breach of a marketing agreement. A writ of attachment was issued and directed to the sheriff of the city and county of San Francisco for service. Pursuant to said writ an automobile truck belonging to said defendants was attached by said sheriff, and thereupon, but prior to the return of said writ or the appearance of the defendants in said action, said defendants, availing themselves of the provisions of section 540 of the Code of Civil Procedure, caused to be delivered to and deposited with said sheriff a bond or undertaking in the principal sum of $1,500, executed by the Royal Indemnity Company, a corporation, as surety, which bond or undertaking, it is alleged, was accepted by the said sheriff after approval by the court pursuant to section 540” of said code, and the property seized by virtue of said writ, which is alleged to be of a value greater than $1,000, was thereupon released from said attachment. The trial of the action followed,

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and on July 28, 1925, the trial court announced its decision awarding damages in favor of plaintiff for the sum of $500 only. At the time this proceeding was instituted findings in the action had not been made and judgment had not been entered. On August 14, 1925, defendants served notice that they would move the superior court in and for the city and county of San Francisco, department three thereof, “for an order directing the substitution of a personal bond in lieu and place of the bond of the Eoyal Indemnity Company.” Said motion was heard on August 21, 1925, petitioner appearing therein and objecting to the proceeding upon the ground “that said court had no jurisdiction to entertain, pass upon or grant said motion.” The petitioner avers that said court overruled said objection and “announced in open court” that the motion would be granted. It does not appear, however, that the order granting said motion has ever been made or entered. In the supporting affidavit filed with defendants’ notice of motion for the substitution of said bond, it is set forth that at the time defendants procured said indemnity company to qualify and act as surety on said bond they deposited with said indemnity company the sum of $1,500 in cash, which deposit defendants now desire to withdraw “and have said bond cancelled and annulled, and in lieu thereof a personal bond in the sum of Fifteen Hundred ($1,500) Dollars substituted therefor”; and in this connection petitioner alleges that “the said surety company, upon the substitution of said bond, will return to the defendants the said collateral security, and the bond heretofore executed by the said Surety Company will be returned to the said Surety Company and will be cancelled, annulled, lost and destroyed.”