Montgomery v. Ottoman

STEPHENS, J., pro tem.

This is an appeal by the plaintiff from a judgment entered in favor of the defendants, who were sued as sureties on an undertaking given by them to release an attachment. The attachment suit was commenced in the superior court of Los Angeles County on September 7, 1920, by the Collection Service Corporation, as assignee of Montgomery & Mathi Company, against Abrams & Cole, a copartnership, and others, to recover the' sum of $1,533.01, alleged to have b~en due and owing for merchandise sold and delivered. The defendants in. the attachment suit demurred to the complaint, and after the overruling of the demurrer filed their answer on October 14, 1920, denying all of the material allegations of the complaint. Before the cause came to trial, however, and on July 27, 1921, the parties to the suit, by themselves and by their attorneys, executed a written agreement, which was thereafter filed as a stipulation in the case. By this stipulation defendants admitted liability in the sum of $1,473.97, and promised to pay the same in installments of $200 on or before August 2, 1921, and $50 the first of each succeeding month, with interest at six per cent. Time was expressly made of the essence, and upon failure of any payment it was provided that "plaintiff shall be entitled to enter judgment herein for the unpaid balance of principal and interest

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upon filing a sworn affidavit setting forth the amount of said principal and interest, the amount, if any, heretofore paid under this stipulation, and the amount of balance due, owing and unpaid on principal and interest hereunder, ’ ’ and the clerk of court was authorized to enter a judgment for such balance. The stipulation agreement recites that it does not affect the liability of the sureties on the undertaking releasing the attachment, and that no other proceeding in the action was to be taken unless default should occur. The sureties did not sign this agreement and in fact knew nothing about it.

Payment was made of the installments due under this stipulation up to the 1st of November, 1921, but none was ever thereafter made. The affidavit of nonpayment was filed and judgment rendered as follows:

“Upon reading and filing the affidavit of L. P. Wackerbarth, and upon reading the stipulation heretofore filed herein, it appearing to the court that the defendants have not made the payments of Fifty Dollars ($50.00) per month for the months of January, February and March, 1922, as agreed upon in said stipulation.