Lane Mortgage Co. v. United States Fidelity & Guaranty Co.

RICHARDS, J.

The plaintiff recovered judgment against the defendant upon an undertaking given by the defendant to the plaintiff for the release from attachment of the property of certain defendants which had been attached in an action by the plaintiff against said last-named defendants and was being held by the sheriff prior to its release upon the giving of said undertaking.

The sole contention which the defendants in the present action offer upon this appeal is that said undertaking was in form and effect the statutory undertaking provided under the terms of section 540 of the Code of Civil Procedure for the release of attached property by the attaching officer; and that this being so the plaintiff was not entitled to a recovery thereon in the absence of a show

[637]

ing that an execution in said former action had been duly-issued and returned unsatisfied prior to the institution of the present action. In mating this contention the appellant relies upon the case of

Passow & Sons

v.

United States Fidelity etc. Co.,

177 Cal. 31 [170 Pac. 1124], and it is conceded by the respondent that if the undertaking sued upon herein is to be held the statutory undertaking provided for in said section of the code, the above-cited case must be given full application to the case at bar and the judgment herein be reversed. The respondent, however, maintains that said undertaking is not such statutory bond, but, on the other hand, is a common-law bond given by the defendant herein directly to the plaintiff herein pursuant to an agreement between the parties to said former action as to the release of the property of the defendants therein upon the execution and delivery of said bond binding the surety company as the maker thereof directly to the plaintiff for the payment of whatever judgment "was obtained by it against the defendants in said former action, and hence that the case of

Passow & Sons

v.

United States Fidelity etc. Co., supra,