Lally v. Wise

By the Court,

Shafter, J. This is an action on an injunction bond executed by the appellants in the suit of Uhlfelder et al. v. Schwartz, Murphy, Lally, et als. Murphy was Sheriff of the County of Santa Clara, and he, amongst other things, was restrained by the injunction from paying over to Lally the sum of one thousand six hundred and seventy-five dollars forty-one cents collected on an execution in favor of Lally against the said Schwartz. It was thereafter determined that the injunction had in that particular been improperly granted. The plaintiff herein, recovered a judgment for one thousand forty-two dollars as damages sustained by reason of a breach of the undertaking declared on. The defendants moved for a new trial, and the appeal is from the order denying the motion.

First—It is claimed that the respondent was never enjoined, for the reason that the injunction was never served upon him.

The undertaking was entitled in the suit of “ S. Uhlfelder & L. Cahn v. Henry Schwartz, Edward Lally, Henry Heilburner, Samuel Day and John M. Murphy, Sheriff of the Cgunty of Santa Clara. It appeared from the judgment roll in that action, given in evidence in this, that the only injunction asked for was against Murphy, restraining him, so far as Lally wTas concerned, in the manner before mentioned. Lally, though served neither with the injunction, nor in the .action, appeared; and it was through his intervention that the injunction was dissolved as to the money belonging to him. The appellants, by the very terms of the undertaking, “ acknowledge themselves to be indebted to the defendants in the above entitled action, and to each or either of them, in the sum of two thousand dollars; for the payment of which, well and truly to be made, they jointly and severally bind themselves and their heirs, executors and administrators firmly by these presents.” The condition, after reciting the pendency of the action and [543]that the County Judge was about to order an injunction restraining Murphy from paying over to “ said defendant Lally and to said Day certain moneys now in his hands by the sale of property under execution in favor of said Lally and said Day severally,” provides “ that if tjie plaintiffs in said action above entitled shall pay to said parties so enjoined such damages riot exceeding two thousand dollars, as such party may sustain by reason of said injunction, if the Court having jurisdiction thereof shall finally decide that the plaintiff was not entitled thereto, then this undertaking shall be void; otherwise of full force.” Lally was not personally enjoined, nor was there any occasion for restraining him. By the service of the writ upon the Sheriff, Lally’s money was effectually intercepted, and the plaintiffs in the proceeding had no motive to go further. Though there may be some question, in view of the fact that Lally was not personally enjoined, as to whether the strictly legal right is in him, yet it is apparent on the face of the undertaking that the bond was given for his and not the Sheriff’s protection; and as the party beneficially interested in the" damages claimed herein, Lally is competent to sue for their recovery. (Prac. Act, Sec. 6 ; Baker v. Bartol, 7 Cal. 551.)