Brownlee v. Riffenburg

Belcher, C. This action is upon an undertaking, executed by the defendants, for the release of property taken under a writ of attachment, in an action wherein the respondent here was plaintiff, and one W. D. Lewis was defendant.

The cburt below gave judgment for the plaintiff, and the defendants have appealed from the judgment, and an order denying their motion for a new trial.

Tl'ie court found that the plaintiff, Brownlee, commenced an action against Lewis, for the recovery of mojaey, in the superior court of San Diego County, and too|c out and caused to be levied on the property of Leváis a writ of attachment; that after the levy, the de3 executed and filed in court, for the benefit [448]of plaintiff, and pursuant to sections 554 and 555 of the Code of Civil Procedure, the written undertaking sued upon; that upon the filing of the undertaking, the court ordered all the property attached to be released and returned to Lewis, and the sheriff thereupon released the same; that such proceedings were afterwards had in the action that the plaintiff recovered judgment therein for the sum of $524.30, no part of which had been paid; that after the recovery of the judgment, and before the commencement of this action, plaintiff demanded of Lewis that he redvliver the property so levied upon to the sheriff of the county, to be applied to the payment of his judgment, and also demanded of the defendants, in the possession and custody of one of whom the attached property had been left by Lewis, that they redeliver the same to the sheriff, to be applied to the payment of said judgment; that neither Lewis nor the defendants delivered the property to the sheriff, and that upon their failure to do so, plaintiff demanded of defendants that they pay him the full amount of his judgment, which they failed and refused to do; and that no execution was ever issued on the said judgment.

Appellants contend that no action can be maintained upon an undertaking given pursuant to section 555 of the Code of Civil Procedure, until an execution has been issued and returned unsatisfied, in whole or in part; and in support of their contention, they cite section 552 of the same code, which reads as follows: “ If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 540 or section 555, or he may proceed as in other cases upon the return of an execution.” The argument is, that this section makes the issuance and return of an execution a condition precedent to the right to commence an action.