Golden West Credit & Adjustment Co. v. Peardon

PLUMMER, J.

The plaintiff brought this action to recover on a certain bond given to secure the release of an attachment previously issued. The bond sued upon, excluding the verification, is in the words and figures following, to wit:

“Whereas, the above named plaintiff has sued out an attachment in the above entitled action in the City and County of San Francisco, State of California, against the above named defendants, by virtue of writ of attachment in the

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amount of $2,231.17, the following described property, to-wit: furniture and all personal property located in that certain building known as Wilson’s Furniture Store at 340 3rd Street, Marysville, Yuba County, California, has been seized and is being held by the sheriff of the County of Yuba, State of California; and whereas, the said defendant is desirous of releasing said property from said attachment before the return thereof is made thereon and according to the form of the statute in said cases made and provided.

“Now, therefore, we the undersigned, residents and freeholders of the County of Yuba, State of California, in consideration of the premises and of the releasing of said property, do jointly and severally undertake in the sum of $4,500.00 and promise to the effect that in case the plaintiff recovers judgment in said action and said attachment is dissolved, that the said defendant will on demand, redeliver to the proper officer, said attached property and in default of such delivery that the defendant and we his sureties will pay or cause to be paid to the plaintiff, the full value of the property so released.

“Dated this 27th day of September, 1929.

“Harvey Whitten

“Feed Peardon.”

The bond was duly verified and approved by the judgment of the Superior Court of Yuba County. The defendants demurred to the plaintiff’s complaint, and particularly stressed the point that the complaint does not state a cause of action. The court sustained the defendants’ demurrer, and from the judgment entered thereon the plaintiff appeals.

The complaint sets forth that on the tenth day of September, 1929, the plaintiff began a certain action against the defendants, Verne S. Wilson and George D. Karseh, individually and as copartners doing business as such under the firm name and style of Wilson & Karseh, for the purpose of recovering the sum of $2,231.17; that a writ of attachment was issued following the filing of said complaint, in due form, placed in the hands of the sheriff of Yuba County for service, and that in pursuance of the writ of attachment the sheriff of Yuba County proceeded to levy upon all of the personal property in that certain store known as “Wilson’s Furniture Store”, in the city of Marysville, whereupon the bond which we have set forth was given to release said prop