Central California Creditors' Ass'n v. Seeley

KOFORD, P. J.

Respondent recovered judgment upon an undertaking given to the sheriff to release an attachment. Respondent was plaintiff in the attachment suit. Cook Lumber Company was defendant. The lumber-yard of said defendant had been attached and the release bond sued on in this case was executed by the defendants in this action, A. L. Seeley and J’. R. Phelps. J. R. Phelps alone appeals.

The undertaking recited the commencement of the action, the levying of the attachment and that “whereas the defendant is desirous of obtaining the release, of said attachment and the return of said property so attached to him before the return of said writ by said sheriff; Now therefore, we the undersigned ... in consideration of the premises and in consideration of the release from attachment of all of the property attached, . . . undertake in the sum of $3,500 . . . and promise that in ease the said plaintiff recovers judgment in said action the said defendant

will on demand redeliver such attached property so released to the proper officer, to he applied to the payment of the judgment, or in default thereof the said defendant and sureties

(italics ours) will on demand pay to the said plaintiff the full value of the property released not exceeding the amount of said judgment.”

When this undertaking was offered in evidence at the trial of this action the words which we have italicized had been scratched through with lead pencil marks and bracketed off with parentheses. Most of the evidence at the trial relates to how, when and where and by whom this alteration or mutilation was made.

The first witness was the deputy sheriff who received the bond. He testified more from his own habits than from recollection. He thought the alteration must have been made before he accepted the bond and was made by the party who presented it with the consent and in the presence of the sureties. Judge P. F. Gosbey could not testify from recollection, but stated that he would have initialed the alter

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ation if he had noticed it at the time he indorsed his approval on it.

The attorney who prepared the bond and appellant who signed it were called by defendants and testified that the marks were not present at the time it was signed and sent on its way to the sheriff’s office. When defendant rested, plaintiff also rested without offering further testimony. Whereupon defendant immediately asked to reopen the case and call Mr. Miller as a witness. This permission was granted over the objection of plaintiff, who specified that Mr. Miller had been present in the courtroom during the course of the trial.