Curtin v. Katschinski (1916) · DecisionDepot

Curtin v. Katschinski

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 2, 1916 No. Civ. No. 1645.Published

Before: Richards

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Holding. The court held that the issuance and return of an execution unsatisfied is a mandatory condition precedent to maintaining an action against sureties on an attachment bond under Section 552 of the Code of Civil Procedure, even when the principal debtor has filed for bankruptcy.

Issues

Whether the issuance and return of an execution unsatisfied is a condition precedent to suing sureties on an attachment bond under Section 552 of the Code of Civil Procedure.
Whether bankruptcy of the principal debtor excuses the failure to issue an execution against them prior to suing the sureties.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the National Bankruptcy Act contains no such inhibition against the issuance and levy of executions after the lapse of one year as against debtors who have not obtained their discharge within that time”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George A. Sturtevant, Judge.

The facts are stated in the opinion of the court.

[769]

RICHARDS,

This is an appeal on behalf of the plaintiff in an action brought to recover the sum of one thousand dollars, alleged to be due upon an undertaking by the defendants as sureties for the release of certain personal property from attachment.

The facts, which are substantially undisputed, are briefly these: The plaintiff and appellant herein commenced an action against the firm of Leipsic Brothers to recover the sum of $3,284.03, and caused to be attached certain personal property owned by said firm. Thereupon the defendants herein, as sureties for Leipsic Bros., executed an undertaking for the release of said attached personal property in the sum of one thousand dollars, and the property was released from the attachment. Subsequently the firm of Leipsic Bros, filed a petition in bankruptcy and were adjudged bankrupts, and the property which had theretofore been under attachment was taken into possession by the trustee, and sold under the order of the referee in bankruptcy for the sum of approximately one thousand dollars and the sale confirmed. Plaintiff presented his claim for the sum of $3,284.03 against said bankrupts, and in due course received dividends thereon aggregating the sum of $2,189.34. He also prosecuted his said action against Leipsic Bros., and recovered judgment against the firm for $3,713.13, upon which nothing was paid except the above dividends. He then began this action against said sureties upon the attachment bond. Leipsic Bros, were not made parties to this action, for the reason that they had not joined in the execution of the attachment bond. The undertaking sued upon was given in conformity with section 555 of the Code of Civil Procedure, and by its terms the respondents herein “undertake in the sum of one thousand dollars and promise that in case the plaintiff recover judgment in said action the defendants (Leipsic Bros.) will upon demand redeliver the attached property so released to the proper officers to be applied to the payment of the judgment, or in default thereof that the defendants and sureties will on demand pay to the plaintiff the full value of the property so released not exceeding the sum of one thousand dollars.” Prior to the commencement of the action upon this undertaking the plaintiff demanded of the sureties the sum of one thousand dollars claimed to be due thereon,

[770]

Curtin v. Katschinski

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Synopsis

RICHARDS,

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