Ayres v. Burr

THE COURT.

—Action by plaintiff against the sheriff of Los Angeles County, and his official bondsmen, for neglect of duty in refusing to serve a writ of attachment in an action by the present plaintiff against one Thomas. Plaintiff had judgment, from which defendants appeal.

In the

action—Ayres

v. Thomas-—which was commenced October 24, 1894, a writ of attachment was duly issued by the clerk on proper affidavit. To prevent the service of the writ, Thomas gave a bond on October 25, 1894, with two sureties, as provided in section 540 of the Code of Civil Procedure. This bond was in the usual form, reciting the pendency of the action, issuance of a writ of attachment, etc., and provided that the undersigned, “in consideration of the premises, and to prevent the levy of said attachment, do hereby jointly and severally undertake . . . and promise to the effect that if the plaintiff shall recover judgment in said action, we will pay to the plaintiff, upon demand, the amount of said judgment,” etc., and-the court found that the sheriff “ accepted said undertaking, and returned said writ of attachment unserved, except by. the taking of said, undertaking, and that he proceeded no further.” It was further found, that thereafter Ayres obtained judgment against Thomas, who appealed to this court, giving the statutory stay bond; the judgment was reversed here and the cause remanded for a new trial; that thereafter, and while the action was pending in the lower court, and before its determination, to wit, on September 7, 1897, plaintiff moved the court to require defendant Thomas to give a new undertaking in place of the former bond given to prevent an attachment, on the ground that the sureties on the former bond were insufficient, and on. September 14, 1897, the court denied the motion, “upon the

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ground that there was no provision of law authorizing the giving of new sureties or a new bond in such a case”; that on September 15, 1897, plaintiff filed an affidavit for an attachment and an undertaking with the clerk of the court, in due form, who thereupon “ duly and regularly issued a writ of attachment in said cause, . . . and delivered the same to the defendant John Burr,” the then sheriff, “ and that said sheriff was directed by said writ to attach and safety keep all the property of said Thomas”; that defendant Thomas then had sufficient property on which levy could have been made; that the sheriff refused to serve the writ, and returned the same unserved, . . . and in said return assigned as the reason for his failure to attach and safety keep the property of said defendant, that said defendant had given to John C. Cline, his predecessor in the office of the sheriff of said county, an undertaking to prevent attachment.” The court also found, that on September 15,1897, and prior thereto, one of the sureties on said last-mentioned bond had become insolvent, and the other surety had but one thousand dollars which could be reached by execution, but said sureties were solvent when the bond was given; that plaintiff obtained judgment against Thomas, November 5, 1897, from which no appeal was taken, and that at that time Thomas had become insolvent, and plaintiff was unable to enforce his judgment against either Thomas or the said sureties, except as to the one thousand dollars enforceable against one of said sureties, and except as to fifty dollars collected from Thomas. °