Western Lithograph Co. v. Vanomar Producers

California Court of Appeal Jan 24, 1928 No. Docket No. 6135.Published

Before: Welch

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Holding. The court held that sureties on an attachment release bond remain liable when an amended complaint does not introduce new parties or a new cause of action, and that the bond was validly executed and accepted by the sheriff.

Issues

Did the filing of an amended complaint without the sureties' consent exonerate them from their obligation?
Was the undertaking unenforceable due to a technical defect in the sureties' qualification description?
Did the sheriff lack authority to accept the undertaking without a court order after the date on the attachment certificate?

Disposition. affirmed

Quotations verified verbatim against the opinion

“unless the amendments are such as to substitute new or different parties or to state a new and independent cause of action, the sureties or guarantors are bound by the judgment.”

“The amended complaint did not change or add any new parties to the action. The cause of action set forth in the amended complaint is based upon the same cause of action set forth in the original complaint.”

WELCH, J., pro tem.

Action on an undertaking given to release an attachment on personal property.

On the seventh day of May, 1919, respondent commenced an action in the superior court in Los Angeles County to recover against the defendant the sum of $9,525.70 for labels, stationery, and merchandise sold and delivered by respondent to the defendant. On the same day a writ of attachment was issued out of said court and action. The sheriff of the county, pursuant to said writ, levied on the property of the defendant on said May 7th. On the next day the undertaking herein involved was given for the release of the property. The sheriff thereupon on May 8th released the property from attachment. On the next day, May 9th, he filed with the county clerk the writ with a certificate of his proceedings on attachment. No other proceedings were filed in the original suit until August 11, 1919, when the plaintiff therein, respondent herein, filed an amended complaint, without the knowledge or consent of the defendant or of the appellants. After various proeeed4.

[551]

ings had, which are unnecessary to be recited here, a judgment was obtained on June 13, 1922, in favor of the respondent and against the defendant for the sum of $9,335 and costs.

A writ of execution was issued upon said judgment and placed in the hands of the sheriff for levy. Said execution was returned by the sheriff wholly unsatisfied. Demand for payment of said judgment was thereupon duly made upon the judgment debtor and also upon the sureties on the undertaking, which demand in each case was refused.

This action upon the undertaking resulted in a judgment against the principal and sureties from which the sureties appealed on the judgment-roll and on a stipulation of facts of the parties.

In the court below and here appellants made and make three defenses to the cause of action against them on the undertaking:

1. That by amending its complaint without the knowledge or consent of the sureties the plaintiff and respondent thereupon altered the obligation of the sureties in such respect as to release them from obligation on their undertaking.

2. That the undertaking so given was not in form a compliance with statutory requirements.

Western Lithograph Co. v. Vanomar Producers

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