Preston v. Hood

Myrick, J. —This is an action on an undertaking given under section 540 of the Code of Civil Procedure, the defendants being the sureties. Two questions are presented for consideration.

[407]First. The complaint avers the issuance of the attachment, and that the sheriff proceeded to execute the writ, and that the defendant in the action, to prevent the levy, gave the undertaking herein sued on; that upon the delivery of the undertaking the sheriff released the property attached, and returned the writ and undertaking. The undertaking recites the issuance of the writ, whereby the sheriff was commanded to attach and safely keep the property of the defendant therein named, unless he give security by undertaking in an amount sufficient to satisfy the demand, and states that, “whereas the said defendant is desirous of giving the undertaking mentioned in the said writ, now, therefore,” etc., “in consideration of the premises,.and to prevent the levy of said attachment,” etc. The court found that the sheriff, upon receiving the writ, proceeded to execute it, and levied upon some property belonging to the defendant named therein, and that upon the giving of the undertaking the sheriff did not attach any further property, and released what property he had levied upon, and returned the writ with the undertaking.

The defendants herein contend that their undertaking was to prevent a levy, not for the release of a levy, and that as property of sufficient value to pay the demand had been seized before the giving of the undertaking, there is no liability on their part.

There are in the Code of Civil Procedure two distinct provisions for undertakings in attachment proceedings: First, that in section 540, by Avhich the undertaking is delivered to the sheriff, and the parties deal directly Avith him; and second, that in section 554, Avhere the court is to order the discharge, after the defendant has appeared. This case is under section 540. The undertaking refers to a Avrit authorized by that section, and recites “Whereas the defendant is desirous of giving the undertaking mentioned in said Avrit,” and the section distinctly states that the AAuit must require the sheriff [which the Avrit in this case did] to attach and safely keep the property of the defendant, unless an undertaking be given in an amount sufficient to satisfy the demand, or in an amount equal to the value of the property Avhich has been or is about to be attached, in which case to take the undertaking. Here is a distinct recognition of the fact that the sheriff may haATe commenced the execution of