McCormick v. National Surety Co.

McFARLAND, J.

Action against surety on a statutory undertaking given for the purpose of having an attachment discharged pursuant to sections 554 and 555 of the Code of Civil Procedure. Judgment went for plaintiff in the court below, and from the judgment and an order denying a new trial defendant appeals.

The plaintiff herein brought a former action against the Stockton and Tuolumne County Railroad Company, a corporation, and its president, Annie Kline Rikert, to recover from them $5,710, with, interest, etc., on a written contract for the direct payment of money, etc., alleged to have been made by both the defendants therein; and in said action he procured a writ of attachment, which was levied on certain steel rails and fittings as the property of said defendants. Afterwards, the defendants therein procured an order releasing said attached property upon the execution of an undertaking in the sum of seven thousand dollars. Such undertaking was executed by the National Surety Company, defendant in the present action, and said property was thereupon released. The said former action was thereafter brought to trial, and a judgment was rendered against one of the defendants therein—Mrs. Rikert— for $6,282.49, together with interest, costs, etc., but plaintiff therein failed to obtain any judgment against the other defendant, the Stockton and Tuolumne County Railroad Company, and the latter had judgment for costs. Thereafter, the defendant in this present action and the defendants in the former action refused to return any part of said attached property, or to pay said judgment, or any part thereof. The attached property was of the value of seven thousand dollars, and the judgment herein is for. less than that amount.

A general finding of the court that certain averments of the complaint were true included the fact that the attached prop

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erty belonged to both the defendants in the former action; but there was a special finding that it belonged to the defendant the said railroad company alone, subject to certain liens, and that the defendant Rikert had no interest therein. Appellant’s contention that the special finding must prevail is correct, and this appeal must be determined upon that theory.

Appellant makes some minor contentions, which we do not think maintainable, and which need not be specially noticed. Defendant’s main contention is, substantially, that the judgment is erroneous because in the former action no judgment was obtained against the defendant therein to whom the attached property belonged; but this contention cannot be maintained.