Credit Association v. Griffin

KERRIGAN, J.

This is an appeal by defendants from a judgment against them as sureties upon a bond given by them for the release of an attachment.

In an action against John Olson, Jr., and another, the plaintiff recovered judgment against Olson for $386.35. At the time of its commencement an attachment was duly issued, and to prevent' the levy thereof the defendants in the present action executed the undertaking above referred to, which obligated the defendants as follows: “Now, therefore, we the undersigned ... in consideration of the premises and to prevent the levy of said attachment, do hereby jointly and severally undertake, in the sum of $772.76, and promise to the effect that if the plaintiff shall recover judgment in said action we will pay to the plaintiff upon demand the'amount of said judgment.” Within a period of four months after the commencement of the attachment suit said Olson was adjudicated a bankrupt by the district court of the United States; and the defendants contend that thereby they were exonerated from the obligation of their bond under the provisions of section 67f of the National Bankruptcy Act [30 Stats. at Large, p. 565, 9 U. S. Comp. Stats. Ann. (1916), sec. 9651, p. 11638, 1 Fed. Stats. Ann. (2d ed.), p. 1130].

[599]

The point thus raised has heen squarely decided against the contention of the defendants in two cases in this state. In the ease of

Rosenthal

v.

Perkins,

123 Cal. 240, [55 Pac. 804], a provision of the State Insolvency Act, [Stats. 1880, p. 82], similar to the one here involved was construed. That provision named one month as the time prior to the commencement of an action during which, if an attachment were levied, it became void by the filing of a petition in bankruptcy against the debtor, in the same way as under the federal act four months is the period fixed. Referring to that provision, the supreme court said: “It is clear, for reasons which need not be enlarged upon, that if at the time the proceeding in bankruptcy is instituted there is no attachment in force on which the proceeding can operate, if the attachment lien has already been discharged by a bond for that purpose, then the liability of sureties on the bond is not affected by the subsequent bankruptcy of their principal. . . . The mistake of the defendants lies in supposing that the lien of the attachment in