Pierce v. Whiting

McKee, J. This suit is founded upon an undertaking, given in an attachment suit brought by the plaintiff against Frederick A. Hyde. The undertaking was given for the release from attachment of the yacht Startled Fawn, which had been seized, by the attachment issued in the case, as the property of the said Hyde, to secure payment of any judgment-which might be recovered in the action against him. By the undertaking, the defendants promised that in case the plaintiff recovered judgment against Hyde in the action, he would, on demand, redeliver the property so released from the attachment, to the proper officer to be applied to the payment of the judgment; or that, in default thereof, he and the sureties would, on demand, pay to the plaintiff the full value of the property released, not exceeding the sum of two thousand five hundred dollars.

In the attachment suit judgment was recovered against Hyde. [540]The judgment remained unsatisfied, and an execution was regularly issued upon it and placed in the hands of the proper officer, for collection according to law. The officer, with the execution in hand, demanded of Hyde payment of the judgment and a redelivery of the yacht to be applied to the satisfaction of the judgment. But the judgment was not paid, nor was the yacht redelivered, and hence this suit upon the undertaking.

The plaintiff had judgment, from which the defendants appeal; and it is contended, first, that the judgment is erroneous, because the court on the trial of the case excluded evidence, which they offered, to prove that the yacht, when it was attached, was not the property of Hyde.

But their undertaking recites the bringing of the attachment suit; the issuance of the writ of attachment therein against the defendant Hyde, and the attachment of his property, namely, the yacht called the Startled Fawn, and that upon the execution of the undertaking in accordance with the provisions of sections 554 and 555 of the Code of Civil Procedure, the property was released by order of the court from the attachment. These recitals are as between the parties to the undertaking conclusive evidence of the facts recited. (Sub. 2, § 1962, Code Civ. Proc.; Palmer v. Vance, 13 Cal. 558; Smith v. Fargo, 57 Cal. 157; Bowers v. Beck, 2 Nev. 150; Drake on Attachments, § 339.) There was, therefore, no error in excluding the evidence.

But it is contended, secondly, that the action itself was not maintainable against the defendants, because the complaint failed to show or aver any demand on them to pay the value of the property released from the attachment.