Taaffe v. Rosenthal (1857) · DecisionDepot

Taaffe v. Rosenthal

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1857Published

Before: Burnett

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Holding. The court held that an order refusing to discharge an attachment is reviewable on appeal from a final judgment, and that the attachment undertaking was valid despite being made to the State and having a slightly informal surety affidavit.

Issues

Whether an order refusing to discharge an attachment is reviewable on appeal after final judgment.
Whether an attachment undertaking is invalid if made to the State rather than the defendants.
Whether the surety affidavit was sufficient under the Practice Act.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It would, practically, destroy the appellate power of this Court conferred by the Constitution.”

“The one hundred and twenty-second section of the Practice Act does not require the undertaking to be executed in form to the defendants, but specifies the conditions it shall contain.”

“The affidavit made by the sureties in this case, when fairly construed, complies with the statute.”

Synopsis

An appeal will lie to this Court, after final judgment, from an order refusing to discharge an attachment.

An order refusing to discharge an attachment cannot be appealed from before final judgment. It is no objection to an undertaking on attachment, that it is made payable to the People

of the State of California, instead of the defendant in the suit, as the latter can sue thereon in his own name.

Burnett, J., delivered the opinion of the. Court—Murray, C. J., concurring.

This action was commenced by attachment and summons, and defendants moved to discharge the attachment, which motion was overruled and exceptions taken. Pinal judgment having been given against defendants, they appealed from the judgment and the order refusing to discharge the attachment.

1. The counsel of plaintiffs objects, that final judgment having been taken against defendants, and that judgment being regular, no objection can be urged on appeal against the order of the District Court, refusing to discharge the attachment. This objection would not seem to be well founded. It would, practically, destroy the appellate power of this Court conferred by the Constitution. If true, the defendant, however great may have been the injury sustained by him in consequence of the wrongful issuing of the attachment, could have no remedy when the order of the Court below should be against him. This point has been decided by this Court in the case of Griswold and others v. Sharp and others, 2 Cal. Rep., 17.

2. The first objection made by the defendants against the undertaking is, that it is given to the State of California, and not to defendants. The conditions of the undertaking comply with the terms of the statute. The one hundred and twenty-second section of the Practice Act does not require the undertaking to be executed in form to the defendants, but specifies the conditions it shall contain. The defect assigned would not seem to be at all material. The defendants being the parties really in interest could no doubt sue upon the undertaking in their own names.

3. The only remaining objection to the undertaking is that the justification of the sureties is insufficient. The six hundred and fiftieth section of the Practice Act requires the sureties to swear that they are each worth the sum specified' in the undertaking. The affidavit made by the sureties in this case, when fairly construed, complies with the statute. The word “ each,” is not placed in the same position that it occupies in the statute; but, taking the whole affidavit together, the meaning is the same.

We can see no error in the decision of the Court below.

Judgment affirmed.

Taaffe v. Rosenthal

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