Goldberg v. Rempp

California Court of Appeal Dec 13, 1928 No. Docket No. 5334.Published

Before: Crail

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Holding. The court held that an allegation of an unsatisfied execution against a principal is a sufficient demand for redelivery of attached property, and that a defendant's failure to deny an allegation of refusal to pay constitutes an admission that renders a formal demand unnecessary.

Issues

Whether the complaint sufficiently alleged a demand for the redelivery of attached property.
Whether the failure to deny an allegation of refusal to pay in the complaint constitutes an admission of such refusal.
Whether a demand for payment is required when a defendant has already refused to pay.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The facts as stated constitute a sufficient demand for the redelivery of the attached property.”

“The failure to deny a material averment in a complaint is an admission of the truth of the fact stated, which is conclusive against the pleader.”

“Since appellant admits in her answer that she refused to pay the judgment, a demand would have been useless and the law does not require the performance of a useless act.”

[454]

CRAIL, J.,

pro

tem.

This is an action upon a joint and several bond given to release certain property from an attachment. The conditions of the undertaking were such that in order to maintain the action against appellant it was necessary for the plaintiff to demand of the principal in the bond the redelivery of the attached property and to demand of the sureties the payment of the amount of the judgment in the original action. It was necessary also to allege such demands.

In lieu of an allegation of the demand for the redelivery of the property the plaintiff alleged: “That on the 5th day of March, 1925, an execution was issued the sheriff of said Los Angeles County, against the property of the said A. Rempp (the principal) under said judgment, but that the sheriff made return on the 6th day of June, 1925, that no property was found and that writ of execution is wholly unsatisfied. ’ ’

The facts as stated constitute a sufficient demand for the redelivery of the attached property.

(Hammond

Starr,

79 Cal. 556 [21 Pac. 971]; 3 Cal. Jur., p. 520.) And the allegation of the facts was a sufficient allegation of the demand for the purpose of sustaining the judgment on appeal. No stereotyped form of allegation of demand is necessary.

(Mullally

Townsend,

119 Cal. 51 [50 Pac. 1066].) It follows that the court’s order overruling appellant’s demurrer to the complaint, based on the failure to allege such demand, will not be disturbed.

The allegation of the complaint with reference to the demand on the sureties is as follows: 11 That on the 5th day of July, 1925, the plaintiff demanded of the defendants herein (including the sureties) the payment of said judgment,

which was by each and all of them refused.”

Goldberg v. Rempp

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CRAIL, J.,

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