United States Fidelity Etc. Co. v. More

California Supreme Court Mar 29, 1909 No. L.A. No. 2166.Published

Before: Henshaw

AI Brief

AI-generated · verify before citing

Holding. The court held that the surety company was a volunteer because the underlying undertaking was invalid for failing to have its amount fixed by the court and for including an unauthorized provision for summary judgment, thus precluding the surety from recovering under its indemnity contract.

Issues

Whether an undertaking on appeal in a replevin action is valid when the amount was not fixed by the court or a judge.
Whether a surety can recover under an indemnity contract for a payment made on a judgment that was legally void and for which the surety was not liable.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“As the amount of the undertaking was therefore not fixed by the court, the -undertaking itself failed to effectuate a stay of execution proceedings, and from this point of view there was no consideration whatsoever”

“Clearly, this language does not import a right of recovery upon the part of a surety company for anything less than a legal liability which it may have incurred.”

“Here, as has been said, the Surety Company had not become liable and was a mere volunteer.”

Synopsis

The facts are stated in the opinion of the court.

HENSHAW, J.

By this action plaintiff seeks to recover of the defendant the sum of $1964.41, with interest, damages, and counsel fees, alleged to be due on an indemnity contract given by defendant to plaintiff in consideration of the execution by plaintiff of a stay-bond on appeal in the replevin suit of

Churchill

More,

4 Cal. App. 219, [88 Pac. 290]. For the facts of the litigation, reference may be had to

Churchill

More, supra; Churchill

More, 7

Cal. App. 767, [96 Pac. 108]; and

Churchill, ante,

p. 368, [101 Pac. 9]. A general demurrer was sustained to plaintiff’s complaint, and from the judgment which followed plaintiff appeals.

The judgment against the Surety Company in the action of

Churchill

More,

was given on motion of the plaintiff Churchill without notice and was based upon the undertaking on appeal executed by the Surety Company, purporting to authorize the taking of such judgment “if the appellant does not make such payment within thirty days after the filing of the

remittihir

of the supreme court in the court from which the appeal is taken.” The judgment in the ease of

Churchill

being in the ordinary form of judgment upon claim and delivery (Code Civ. Proc., sec. 667), the only bond required to stay execution upon appeal is the statutory bond prescribed by section 943 of the Code of Civil Procedure. The condition of such an undertaking is not that judgment may be taken on motion. Such requirement is exacted only of the bond' prescribed by section 942 of the Code of Civil Procedure, from “a judgment or order directing the payment of money.” The judgment in

United States Fidelity Etc. Co. v. More

AI Brief

Synopsis

HENSHAW, J.

More from California Supreme Court

Related research

AI Brief