Bentinck v. Menotti

NEEDHAM, J.,

pro

tem.

On the nineteenth day of September, 1927, the plaintiff and appellant herein, Bentinck, was sued in the justice’s court of Palo Alto township, Santa Clara County, and on the same day a writ of attachment was issued out of said justice’s court and was subsequently placed in the hands of the defendant and respondent herein, M. E. Menotti, who at the time was constable of Sausalito township, in the county of Marin, and thereafter, on the twenty-sixth day of September, 1927, Menotti, as such constable, attached at Sausalito a certain automobile belonging to appellant, Bentinck.

The defendant, Menotti, ,as constable of Sausalito township, Marin County, after making the attachment above stated, made his return upon the writ and gave it to a clerk in the law office of the plaintiff’s attorney in the justice’s court action in Palo Alto, with directions to forward the same to the justice’s court at Palo Alto for filing. The said writ was filed in the justice’s court of Palo Alto on the twenty-fourth day of October, 1927.

On the eleventh day of October, 1927, the plaintiff and appellant herein, Bentinck, defendant in the justice’s court action at Palo Alto, through Ms attorney, gave notice to the attorney of the plaintiff in the justice’s court action that he would apply to the justice of the peace of Sausalito township, Marin County, for an order discharging the attachment, and on said day the attorney for Bentinck appeared before the justice of the peace of Sausalito township and the said justice fixed and approved an undertaking • in the sum of $300 for the release of the said attachment.

It appears that said undertaking was never filed, either in the justice’s court at Sausalito or in the justice’s court at Palo Alto. It also appears in evidence that no application was made at any time for the fixing of an undertaking for

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the release of the attachment in the justice’s court at Palo Alto.

After the approval of said undertaking on the eleventh day of October, 1927, by the justice of the peace of Sausalito, the appellant on the same day presented to the defendant herein, as constable, the said undertaking and demanded the release of the attachment of the automobile, which was refused.