Allerton v. King

SHIELDS, J.,

pro

tem.

This is an action on a bond of indemnity given under the following circumstances: The defendant, John F. King, was employed as a fireman and laborer in the operation of a steam shovel, owned and operated by the brothers H. D. Allerton and D. F. Allerton. The Allertons failed to pay King for his labor, and on or about July 8, 1925, King began an action against them in the justice’s court in the county of Los Angeles for the sum of $296. In this action he procured a writ of attachment which was duly levied upon the steam shovel owned by the defendants therein. The writ was levied by Walter Hanby, the constable of the township in which the action was pending. About the 15th of July, 1925, Fannie Allerton, the plaintiff in the case now before us, presented her verified claim to the constable, Hanby, showing that she was the holder of a promissory note for $6,500, secured by a chattel mortgage on the steam shovel, and demanding that the constable deliver up the property to her, or that her claim against the property be satisfied. About August 13, 1925, upon the demand of the constable, under section 2969 of the Civil Code, the defendant in this action, the plaintiff there, gave the bond therein provided for, with the defendants W. P. Cunningham and Fannie R. Cunningham as sureties, conditioned as in such eases. The brothers Allerton defaulted in the action in the justice’s court, and judgment was rendered therein in favor of King. The steam shovel was thereafter sold under execution on this judgment, the price realized for it being $550. Thereafter, Fannie Allerton began an action against the brothers Allerton to foreclose her chattel mortgage. The defendant herein, John F. King, intervened in that action. In that action Fannie Allerton prevailed and was given a judgment for $7,258.20, the

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judgment reciting that the Allerton brothers and the intervener King, and all persons claiming under them, be forever barred from any interest in the shovel property. Execution issued upon this judgment, which later was, by the sheriff,returned unsatisfied. This action was thereupon brought by Fannie Allerton upon the indemnity bond above mentioned against King, the principal therein, the Cunninghams, sureties thereon, and against the constable, Hanby. In this action she asked for an attorney fee of $2,500. For some reason which is not disclosed the Cunninghams and Hanby do not further appear in the record. Defendant King answered the complaint. Plaintiff thereupon filed a motion to strike out considerable portions of this answer, and at the same time filed a general demurrer thereto. The motion to strike was granted in its entirety. To the answer as it then stood the general demurrer was sustained. Defendant failed to amend his answer and his default was entered, and later, judgment was rendered against him for $10,058.44, and $36,25 costs. It is from this judgment, which is the somewhat startling result of defendant King’s adventure in litigation, that this appeal is taken. He resorted to a justice’s court to collect a small labor claim, admittedly due, and emerges with this heavy judgment against him. We think that the judgment was mistakenly arrived at. In this action on defendant’s bond by Fannie Allerton, her measure of damages was the value of the property converted. Respondent very plausibly contends otherwise, but the law in California seems settled to the contrary. In