Hammond v. Starr

California Supreme Court Jul 2, 1889 No. No. 11623Published

Before: Gibson

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Holding. The court held that irregularities in an attachment suit, such as misnaming a defendant, are waived by appearance and that the measure of recovery on an undertaking for the release of attached property is limited to the amount of the plaintiff's recovery in the underlying attachment suit.

Issues

Whether misnaming a defendant in an attachment suit invalidates the attachment lien.
Whether amended complaints in an attachment suit void the attachment levy.
Whether the measure of recovery on an undertaking for the release of attached property is limited to the amount of the underlying judgment.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“When a person, natural or artificial, is sued by a wrong name, and appears by and in his or its true name in the action without objection, the error is waived.”

“The measure of recovery on a delivery bond is the value of the property secured by it, not exceeding the amount of plaintiff’s recovery in the attachment suit.”

Synopsis

Attachment—Pleading—Misnomer of Corporation—-Waiver.—The omission in a complaint and proceedings upon attachment against a corporation defendant of the word “company” from its corporate name does not affect the attachment lien, and the error is waived by an appearance and answer of the corporation in its true name without objection.

Id. — Amendment of Complaint—Change of Cause of Actions—Collateral Attack. — A defective complaint in an attachment suit may be amended without affecting the attachment lien; and an objection that the amendment stated a different cause of action from that declared on in the original complaint cannot be urged for the first time in a collateral suit on a bond given for release of the attachment.

Id. —Action on Bond foe Release of Attachment — Demand—Return of Sheriff. — The sheriff’s return upon, execution showing a demand upon the officers of the defendant corporation for payment of the amount named in the execution, and an answer by them that no money or property of the corporation is in their possession, and showing the execution unsatisfied, shows a sufficient demand for redelivery of the attached property to sustain an action upon a bond given for its release, after notice by the plaintiff to the sureties of non-delivery of the attached property, and demand of payment from them of the amount fixed in the undertaking.

Id. — Measure of Damages. —In an action upon a bond given for release of attached property, the measure of damages is the value of the property released, not exceeding the amount recovered in the attachment suit, with statutory interest thereon until the date of judgment in the action upon the bond.

Gibson, C. — This was an action against defendants as sureties upon an undertaking to obtain the release of an attachment levied in another suit, and was tried before the court without a jury, and resulted in a judgment for plaintiff, from which judgment defendants appeal, and instead of moving for a new trial, bring up the evidence, rulings, and exceptions in a bill of exceptions.

In the action wherein the attachment proceedings occurred, it appears the original complaint therein was entitled John Hammond v. Ætna Iron Works, a Corporation, and the affidavit and undertaking for an attachment were entitled the same. The defendant thus designated appeared in and by its true name, viz., Ætna Iron Works Company, and demurred to the complaint. This demurrer was sustained, and pursuant to leave obtained, plaintiff filed an amended complaint, entitled the same as the original complaint, to which defendant again

[558]demurred by its true corporate name, which demurrer was overruled. Two answers were then put in, one by the Ætna Iron Works, averring that said Ætna Iron Works was a private copartnership, and denying the corporate .existence of defendant; the other by the Ætna Iron Works Company, averring its corporate capacity, and denying that the Ætna Iron Works ever was a corporation or anything other than a private copartnership. Thereafter, the plaintiff served on the attorney who had appeared as the attorney for the Ætna Iron Works Company, and filed a second amended complaint, in the title of which the defendant was designated as the Ætna Iron Works Company, a corporation. For failing to answer this last amended complaint, judgment was rendered in favor of plaintiff against the Ætna Iron Works Company, a corporation. The day after, the Ætna Iron Works Company appeared and demurred to the original complaint; it made its motion in its true corporate name for a release of the attachment levy, under the provisions of sections 554 and 555 of the Code of Civil Procedure, which motion was granted, and the undertaking sued on in this action given pursuant to said sections.

When a person, natural or artificial, is sued by a wrong name, and appears by and in his or its true name in the action without objection, the error is waived. (McCreery v. Everding, 54 Cal. 168.)

The irregularity in omitting the word “company” from the name of defendant in the original complaint did not affect the attachment lien. In Porter v. Pico, 55 Cal. 173, the court, speaking of an attachment lien that had merged in the judgment therein considered, said: “ This lien was not affected by any irregularities in the attachment itself, nor was it destroyed by the judgment rendered in the attachment suit. Any irregularities in obtaining it were waived by the defendant to the suit when he appeared and answered, without taking advan

Hammond v. Starr

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