Coburn v. Smart

By the Court, Wallace, C. J.: The plaintiff, Coburn, brought this action in replevin against Smart, the defendant, for the recovery of a large quantity of lumber, and at the time of the issuance of the summons he delivered to the Sheriff an affidavit, notice, and undertaking, as provided by secs. 510, 511, and 512 of the Code of Civil Procedure, in proceedings by a plaintiff for claim and delivery of personal property. Thereupon, the Sheriff took the lumber from the possession of Smart, and the latter, for the purpose of procuring its return to him pending the action, delivered to the Sheriff a written undertaking, executed by the intervenors Hcarst and Pearson, as sureties thereon, to the effect that they were bound in double the value of the property in controversy for the delivery of the lumber by the defendant to the plaintiff, if such delivery should be subsequently adjudged, and for the payment to the plaintiff of such sum as might, for any cause, be recovered against the defendant Smart, as provided by sec. 514 of the same Code. The defendant filed an answer denying the allegations of the complaint, and the cause was set down for trial on the 5th day of June, 1877, on which day, and before the calling of the cause on the calendar, Hearst and Pearson appeared and presented to the Court their complaint in intervention, and asked leave to file the same, which was refused by the Court. The trial of the cause was then proceeded with, and resulted in an alternative judgment in the usual form in favor of the plaintiff, and against the defendant Smart, for the return of the lumber in controversy, or its value if return could not be had. Prom this judgment, and from the order refusing their proposed intervention, Hcarst and Pearson bring this appeal. In their complaint in intervention offered in the Court below, Hcarst and Pearson set forth the proceedings in the action by which they became the sureties of Smart, and alleged that the latter is insolvent, and unable to pay any judgment which the plaintiff might obtain against him, and that Smart was actually in collusion with the plaintiff Coburn in the conduct of the [744]action, and was not making a bona fide defense therein, but proposed and intended to suffer a judgment to be entered against him, and in favor of Coburn, as prayed for in the complaint; and also, that the proposed intervenors had, since the commencement of the action, purchased from the defendant Smart about eighteen thousand feet of the lumber in controversy in the action, and were then in the possession of the same.

1. The interest of Hearst and Pearson in the success of the defendant is apparent, for by the judgment, if any, to be rendered against Smart, they would not only be concluded as to their title to the eighteen thousand feet of lumber purchased by them of Smart pendente lite, (Brooks v. Hager, 5 Cal. 283) but their liability upon the undertaking given by them in behalf of Smart would become fixed.