Barrios Co., Inc. v. Indemnity Ins. Co.

TYLER, P. J.

This action was brought to recover the sum of $1514.71 upon an undertaking executed by defendant for the release of an attachment levied in a case wherein appellant was plaintiff and G. V. Pettigrew Company defendant.

The complaint alleged the commencement of the action by plaintiff herein against G. V. Pettigrew Company, the issuance of a writ of attachment therein and levy of the same upon moneys on deposit to the credit of Pettigrew Company in the American Bank of San Francisco, which sum, it was further alleged, was in excess of the amount sued for. The issuance of an order for the release of the attachment upon the filing of the undertaking above referred to was then alleged, as was also the obtaining of a final judgment in favor of plaintiff and against the Pettigrew Company for the amount heretofore stated. Further allegations recited that the judgment remained wholly unpaid; that demand was made upon defendant herein for the return by it of the money attached, which demand was refused. Defendant, by answer, in substance, alleged that there was no money or property levied upon under or pursuant to the writ of attachment, and there was, therefore, no property to be redelivered by it. The trial court found that at the time the writ of .attachment was levied by plaintiff there was on deposit in the name of the Pettigrew Company with the said bank a sum in excess of three thousand dollars, and it further found that at that time the Pettigrew Company was indebted to the bank in the sum of ten thousand dollars. It also found that the company was insolvent, and the bank, by reason thereof, had no

money

in its possession or under its control belonging to such insolvent company. The finding that the bank had no funds in its possession belonging to the company was based upon evidence that it had applied the amount of the account under

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its bankers’ lien to the unpaid indebtedness of such company, and accordingly made return to the sheriff that there was no balance due. Judgment went in favor of defendant surety company, and plaintiff appeals.

The contention is made, in support of the appeal, that the filing of the bond for releasing the attachment made it incumbent upon the defendant in this action, upon the final determination of the case of