Mulford v. Estudillo

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover damages upon a bond of indemnity. The case has been previously before this Court, on appeal from a judgment rendered upon demurrer to the complaint, and will be found reported in 17 Cal. 618. After the decision of the first appeal the defendant answered, setting forth that the parties to the agreement mentioned in the bond of indemnity were never called upon or required to pay any costs or damages recovered in the suit of Boyreau v. Campbell et al., or molested or disturbed by any judgment therein; and, further, that the costs in the action of Boyreau v. Campbell et al., were paid by other of the defendants therein than those who were parties to the agreement; that the execution issued in said action was duly levied on the goods and chattels of one James Kennedy, one of the defendants therein, but who was not a party to the agreement, to an amount and value amply sufficient to satisfy and discharge said execution; that this levy was made before the payment by Bray, and the goods and chattels were in the custody of the Marshal, under the levy, at the [100]time of such payment. To this answer there was no replication. The action was tried by the Court, who found for the plaintiff, and judgment was rendered accordingly, from which the defendants appeal.

The'appellants contend that the allegations in the answer respecting the satisfaction of the execution by a levy upon sufficient personal property is new matter, and, no replication being filed thereto, is to be deemed admitted. On the contrary, the respondent contends that these averments are in the nature of a plea of payment, and therefore not new matter needing a replication. The law is well settled that, as a general rule, a levy under an execution upon sufficient personal property to satisfy the same is a satisfaction of the judgment, sufficient at least to discharge third persons who were liable collaterally, or as sureties thereon. (People v. Chisholm, 8 Cal. 29; Mickles v. Haskin, 11 Wend. 125; Morley v. Dickinson, 12 Cal. 561.) The law does not deem such a levy & payment, but it is termed a satisfaction or discharge, and the facts thus set forth in the answer were properly new matter, and were to be taken as true, no replication denying the same having been filed.

The defendants agreed to indemnify the plaintiff against the payment of costs in Boyreau v. Campbell et al., and they were therefore in a manner collaterally liable therefor, in the nature of sureties. The levy upon sufficient personal property to satisfy the judgment and execution in that case operated as a satisfaction thereof, sufficient at least to discharge the collateral liability of these defendants. Neither the plaintiff in that action, nor Bray, one of the parties to the agreement, could do any act by which such discharge could be rendered ineffectual or nugatory, without the consent of these defendants. (Morley v. Dickinson, 12 Cal. 561.) It follows, that neither the release of the property from the levy by the plaintiff in that action, nor the subsequent voluntary payment of the judgment by Bray, could revive the liability of these defendants which had been thus discharged, unless done with their consent, no evidence of which appears in this case.