Newell v. McDonald

California Court of Appeal Dec 21, 1922 No. Civ. No. 3671.Published

Before: Craig

AI Brief

AI-generated · verify before citing

Holding. The court held that sureties on an indemnity bond are liable to a sheriff for damages, storage costs, and attorney's fees incurred in defending an action resulting from the sheriff's retention of property under an attachment.

Issues

Whether sureties on an indemnity bond are liable for storage costs and attorney's fees incurred by a sheriff in defending a third-party claim for attached property.
Whether a sheriff's continued possession of property, despite an order to release it, constitutes a valid basis for recovery under an indemnity bond when storage fees remain unpaid.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The sheriff was entitled to recover for reasonable attorney's fees under the provision heretofore quoted from the bond sued upon.”

“The sheriff ratified and himself affirmed the stand taken by the garage. There can be no question but that in so doing he demanded nothing more than the statute authorized him to require.”

CRAIG, J.

The plaintiff, the sheriff of Kern County, prosecutes this suit against R. McDonald and R. McDonald, Jr., on an indemnity bond executed by these defendants as sureties. The action in connection with which the bond was given was entitled

Dormitzer

F. M. Meigs and Consolidated Chemical Company.

Dormitzer has since died and W. G. Sylvester has been appointed administrator of his estate. In that action after an attachment had been procured by the plaintiff on October 2, 1917, one W. S. Meigs filed a third-party claim asserting ownership of the automobile which was the subject of the litigation. The indemnity bond signed by the McDonalds as sureties was to secure the sheriff against liability “from all damages, ex

[203]

penses, costs and charges, and against all loss and liability, which either said sheriff, his heirs, executors or administrators shall sustain, or, in anywise be put to, for, or by reason of the attachment, seizing, levying, taking or retention by said sheriff in his custody under said attachment of the said property claimed as aforesaid.” In the ease at bar, after a trial, the court rendered judgment for the plaintiff in the sum of $1,880.68 and costs. The main facts were stipulated. These, in so far as it is necessary to recite them for the purposes of this appeal, are: that the plaintiff, as sheriff, by virtue of a writ of attachment issued in the action of

Dormitzer

Meigs et al.,

levied upon and held possession of the automobile which was the subject of the suit; that W. S. Meigs, not a party to the action last referred to, served a written verified claim, pursuant to section 689 of the Code of Civil Procedure, upon the sheriff, claiming the right to possession of the automobile and demanding that the sheriff release it from the attachment.

That upon receipt of said verified claim the sheriff notified Dormitzer of the filing of said claim and that thereupon Dormitzer, as principal and E. McDonald and E. McDonald, Jr., as sureties, executed and delivered to the sheriff, in order that the sheriff should retain possession of said automobile, a bond of indemnity in the sum of $2,000; that the sheriff thereupon retained possession of said automobile and held the same under and by virtue of said writ of attachment.

Newell v. McDonald

AI Brief

CRAIG, J.

More from California Court of Appeal

Related research

AI Brief