Benson v. Olender

LANGDON, P. J.

The defendants appeal from a judgment against them as sureties on a replevin bond. The following facts appear from the findings of the court:

On December 12, 1922', Sam Caplan and I. H. Caplan commenced an action in the superior court of the ’ state of California, in and for the county of Fresno, against one S. S. Smith. Said action was in replevin, the plaintiffs therein claiming to be entitled to .the possession of certain personal property then in the possession of defendant. A

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writ of replevin issued and the goods were seized by the sheriff and delivered to the plaintiffs. The defendant Smith filed an answer in said action, demanding the return of the property or its value, alleged to be $4,000. The plaintiffs in said action filed a replevin bond signed by Olender and Samuels, defendants herein, which bond contained the following clause: “Now therefore, we, the undersigned, residents of the said County, in consideration of the premises and of the delivery of the said property to the said plaintiffs do hereby undertake and acknowledge to the effect that we are jointly and severally bound in the sum of Eight Thousand Dollars, being double the value of said property as stated in said affidavit, for the prosecution of the said action, for the return of the said property to the said defendant, if return thereof be adjudged, and for the payment to the said defendant of such sums as may from any cause be recovered against the said plaintiffs.”

Thereafter, said replevin action came regularly on for trial on April 28, 1924, and judgment was entered in favor of the defendant Smith and against the plaintiffs Sam Caplan and I. H. Caplan in the sum of $1,750, together with costs. Said judgment became final and a writ of execution issued thereon was returned unsatisfied. Demand was made upon the defendants herein as sureties on the bond to pay the amount of the judgment and they refused to do so. Smith assigned the judgment in the replevin action to plaintiff, and the defendants, on November 6, 1924, paid $721.95 upon the same, leaving a balance due thereon of over $1,200.

Incidentally, in June, 1924, a certain action was filed in the superior court of the state of California, in and for the county of Fresno, by the Caplan Finance Corporation against S. S. Smith, the defendant in the original replevin action, and his wife. In said action brought by the Caplan Finance Corporation a writ of attachment was issued and served upon Sam Caplan and I. H. Caplan, which attached all the money, goods, debts, etc., or other personal property belonging to said S. S. Smith in the possession or under the control of said Sam and I. H. Caplan. Prior to the trial of the present action said writ of attachment in the case of