Mills v. Gleason
Before: Cope
Synopsis
A complaint, in an action upon a statutory undertaking, which contains no other description of the instrument than an allegation that it corresponds with the provisions of a certain section of the Practice Act, is defective. The defect, however, being of form rather than of substance objection to it must be taken by demurrer to the complaint.
The one hundred and seventy-seventh section of the Practice Act and the decisions under it, to the effect that the sureties upon the undertaking given by the plaintiff in a replevin action to procure a delivery of the property, are not responsible for a return of the property or its value unless a return was claimed in the answer and awarded by the judgment, do not apply to cases where the action is dismissed by the plaintiff before trial.
The dismissal of a replevin action by the plaintiff before trial leaves the parties to settle in an action upon the undertaking those matters, including the right of defendant to a return of the property, which, had the original suit been prosecuted, must have been determined therein in the first instance. The opportunity to obtain a judgment for the return having been taken away by the failure to prosecute, defendant is entitled to recover, in an action on the undertaking, compensation in damages.
Where the replevin action is dismissed before trial, the liability of the sureties on the undertaking for a return of the property is not affected by the fact, that before the dismissal an answer had been filed in which no return of the property was claimed.
Cope, J. delivered the opinion of the Court Court Field, C. J. and Norton, J. concurring.
[279]This is a suit upon an undertaking executed by the defendants in pursuance of section ene hundred and two of the Practice Act. The only description of the undertaking in the complaint is, that it corresponds with the provisions of that section, and it is objected that in this respect the complaint is defective. It is claimed that the material portions of the undertaking should have been set forth, either literally or according to their legal effect; and there is no doubt that the mode of statement adopted is not sanctioned by the rules of pleading. A reference to the statute can hardly be considered equivalent to a direct averment of the facts; but we are of opinion that the objection should have been taken by demurrer. The defect is rather of form than of substance, and in the absence of a demurrer we do not regard it as sufficient to reverse the judgment.
The undertaking was executed in an action of replevin, brought by one Gould against the present plaintiffs. A question is raised as to whether the value of the property can be recovered as damages, the counsel for the appellants insisting that the damages are to be measured by the judgment in the action of replevin. The undertaking is conditioned “ for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to them of such sum as may for any cause be recovered against the plaintiffs.” The action was dismissed for want of prosecution, and a judgment entered in favor of the defendants for costs, and the position taken is that the amount of this judgment constitutes the measure of the relief to be administered. There are several decisions of this Court holding that a defendant in replevin, in order to render the sureties upon the undertaking liable for' the value of the property, must demand a return in the answer, and obtain a judgment directing it. In Chambers v. Waters (7 Cal. 390) the Court said: “ In the case between Waters and Hill, if the latter intended to hold Waters and his sureties responsible upon the undertaking, either for a return of the property or its value, he should have claimed a return, and taken his judgment accordingly. Having failed to do this, the payment of the judgment, as taken, is a complete discharge,” etc. There are other cases to the same effect; but in Gianaca v. Atwood [280]
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