Hutchinson v. United States Fidelity & Guaranty Co.

FINLAYSON, P. J.

This action is upon an undertaking executed by defendant, as surety, for the release of property that had been taken under a writ of attachment in an action brought by the plaintiff here against A. Lincoln Miller and others. The undertaking, which was given pursuant to section 540 of the Code of Civil Procedure, binds defendant to pay to plaintiff, on demand, the amount of whatever judgment the latter might obtain in the action which he had brought against Miller et al. Defendant having appeared and answered, plaintiff moved for . a judgment on the pleadings, claiming that defendant’s answer raised no material issue. The motion was granted, and defendant now appeals from the judgment. Insisting that its answer does present material issues, one in the form of a denial and another in the form of new matter, appellant contends that in granting plaintiff a judgment on the pleadings the lower court committed reversible error.

[575]

After averring that on January 24, 1921, he recovered a judgment for $2,024.90 against Miller et al. in the action wherein the defendant here had given the undertaking to release the attachment, plaintiff alleges in his complaint that on February 4, 1921, “execution was duly and regularly issued out of said court [the court in which the action against Miller et al. was pending], and remedy thereon regularly pursued, and on the fourth day of March, 1921, said execution was duly and regularly returned and filed in the office of the county clerk . . . wholly unsatisfied.” None of these averments is denied except that defendant denies, on information and belief, that “the remedy on said execution was regularly pursued.” It is appellant’s contention that this denial raises a material issue, and that, therefore, it was error to render judgment on the pleadings. The contention lacks merit.

It is provided by section 552 of the Code of Civil Procedure that “if the execution be returned, unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section five hundred and forty or section five hundred and fifty-five, or he may proceed, as in other cases, upon the return of an execution.” As we have seen, it is alleged in the complaint, and not denied in the answer, that “execution was

duly.