Carter v. Mulrein

McFarland, J. This is an action on an injunction bond alleged to have been executed by the defendant Mulrein as principal, and the other defendants as sureties, in a certain action in the superior court in which the said Mulrein was plaintiff, and I. S. Kalloch and Carter (the plaintiff herein) and others were defendants. Judgment (in the case at bar) went for plaintiff, and the defendants Alpers and Westphal, two of the sureties on the bond, appeal from the judgment, and from an order denying a new trial.

The first point made by appellants is, that the complaint does not state a cause of action,—that point having been made, also, in the court below on an objection by defendants to the admission of any evidence on the part of plaintiff. And we see no escape from holding that the point is well taken.

It fully appears, from the complaint, and is admitted on the argument, that, in the said case of Mulrein v. Kalloch et al., an order was signed by the judge of the court on March 3,1881, and filed March 4, 1881, that an injunction issue “on the filing-by plaintiff of a joint and several undertaking to the defendants in the sum of seven thousand five hundred dollars, with two sufficient sureties ”; that on said March 4th a writ of injunction was issued and served; that said writ was the only writ of injunction ever issued in said action; that all the alleged damage to plaintiff was caused by his obedience to that writ, and that the bond sued on in the case at bar was not executed until March 12,1881, eight days after the issuance and service of said writ. The bond recites that “whereas the above-entitled court has made an order that, upon the filing by the above-named plaintiff of an undertaking in the sum of seven thousand five hundred dollars, with two sufficient sureties, a writ of injunction issue.

. . . . Now, therefore, in consideration of the premises, and that said. writ, of injunction may issue, we” under[169].take, etc. No writ issued after the filing of the undertaking.

It is well settled that sureties on statutory bonds, having no personal interest in the litigation, can stand upon the express terms of their undertaking, and cannot have their liability forced beyond those terms. “A surety has a right to stand on the precise terms of his contract. He can be held to no other or different contract.” (People v. Buster, 11 Cal. 220.) “ His liability arises under his contract merely, and is limited by its terms and conditions.” (McDonald v. Fett, 49 Cal. 355.) “If there is any principle of law well settled, it is that the liability of sureties is not tfi be extended beyond the terms of their contract. To the extent and in the manner and under the circumstances pointed out in their obligation, they are bound, and no further; they are entitled to stand on its precise terms.” (Pierce v. Whiting, 63 Cal. 543.) In the bond sued on in this case, there is no undertaking by the sureties to protect against the injunction which had been issued on March 4th. It referred entirely to a writ of injunction which might issue by virtue of the undertaking upon or after its filing; and no such writ ever issued. No doubt the defendant in that case (plaintiff in this) relied upon that undertaking; but we cannot wrest settled principles of law from their foundations in order to condone the carelessness of parties who fail to look after their rights at the proper time. If the defendants in the injunction suit had paid the slightest attention to their interests when the bond sued on was filed, they would have discovered that it afforded no protection against the writ, which had for several days been issued and served, and that said writ was invalid, unless, indeed, we must presume that some other bond had been filed before the writ issued.