Republic Truck Sales Corp. v. Peak

RICHARDS, J.

The questions presented for decision upon this hearing arose out of the following state of facts as they appear upon the face of the record in the main case recently decided by this court

(Republic Truck Sales Corp.

v.

Peak,

194 Cal. 492 [229 Pac. 331]), and which may be briefly summarized as follows: The plaintiffs herein commenced this action against the defendant, George Peak, to recover the aggregate sum of $50,075.19 as set forth in the several counts of their complaint, and procured a writ of attachment to issue and be levied upon certain personal property of said defendant. At the time of the issuance and levy of said writ, as appears from the sheriff’s return thereon, the said property was in the custody of said sheriff under, and was subject to, two prior attachments issued and levied in actions theretofore instituted by other creditors of said Peak. Subsequent to the issuance and levy of the plaintiffs’ said writ, the defendant made a motion to discharge the same and release his said property from attachment thereunder upon the ground that said writ did not conform to, but was in violation of the provisions of section 538 of the Code of Civil Procedure. The trial court on May 16-, 1923, made and entered its order granting said motion; whereupon the plaintiffs took and perfected an appeal from said order. The plaintiffs also, and at the time of taking said appeal, presented and filed, on June 2, 1923, an undertaking to stay proceedings upon said order pending such appeal in the stipulated sum of fifty thousand dollars and with a qualified surety. In the charging part of said undertaking the surety thereto bound itself in said sum “that if the said order appealed from or any part thereof be affirmed

appellant

will pay all costs and damages which the defendant may sustain by reason of said attachment in the sum hereinbefore mentioned and that the

appellant

will obey the order of the appellate court upon this appeal.” No ob

[602]

jection was made by the respondent Peak to the form- or substance of this bond, either in the trial court or in this court prior to December 3, 1923. In point of fact, no direct objection was ■ ever made by said respondent to the form or sufficiency of said bond in the form of an application to the trial court or to this court for relief from the effect of said undertaking or for the giving of a sufficient undertaking. The matter stood