O'Connell v. Rogers

NOURSE, J.

Plaintiff sued to recover on a statutory bond given under sections 554 and 555 of the Code of Civil Procedure for the release of an attachment upon real property. The defendant McKellar alone appeared in -answer to the summons and from the judgment which was rendered against her she appeals under section 953a of the Code of Civil Procedure.

The controversy arose from an action commenced by the same plaintiff against the Santanella Land Company, a corporation, for services rendered. When that action was commenced an attachment was issued and levied upon real property belonging to the corporation and situated in Merced County. To release its property from the attachment the corporation filed an undertaking with the defendants Rogers and McKellar as sureties, and, after a hearing and examination thereon, the undertaking was approved and the attachment was, by order of the court, discharged. Thereafter the corporation disposed of all its property and rendered itself immune from execution upon the judgment which was subsequently rendered against it. The undertaking was in the usual form provided for in section 555

[541]

of the Code of Civil Procedure, and recited that it was given in consideration of the release from attachment of the property of the corporation. Thereby the sureties expressly contracted that, if the plaintiff should recover judgment, the defendant would, on demand, redeliver the attached property to the proper party to be applied on the judgment or that, in default thereof, they would pay to the plaintiff the full value of the property not exceeding the amount of the judgment. The value of the bond was $2,500; the judgment was for $398. Execution was returned unsatisfied and the plaintiff made demand upon the corporation and its sureties for payment of the judgment. This demand having been refused the present action was commenced against the principal and the sureties on the bond and against Rogers and one Wiley, who were alleged to be the sole stockholders and owners of the corporation. The defendant Wiley defaulted and the trial was had against the defendant McKellar alone. She appeals from the judgment which went against her in the sum of $409.92.

Two grounds are presented by the appellant in her attack upon the judgment: First, that the sureties on the bond in suit were released when the superior court ordered the attachment restored upon the failure of the corporation to give new and sufficient surety; and, second, that the special demurrer of appellant on the ground of misjoinder of parties defendant should have been sustained.