Tibbet v. Sue

California Supreme Court Oct 1, 1898 No. L. A. No. 426Published

Before: Garoutte

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Holding. The court held that a writ of attachment must be discharged when the accompanying undertaking fails to include an affidavit confirming the sureties are householders or freeholders, and such a defect cannot be cured by amendment.

Issues

Whether an attachment affidavit sufficiently states the amount of demand when it specifies a sum plus interest and fees.
Whether a writ of attachment must state the exact amount of demand set forth in the complaint.
Whether an undertaking on attachment is fatally defective if it lacks an affidavit of sureties' qualifications.
Whether a defective attachment undertaking may be amended under general provisions for relief.

Disposition. reversed

Quotations verified verbatim against the opinion

“The clerk has no authority to issue a writ of attachment unless the request is accompanied by an undertaking, with an affidavit attached setting forth the facts demanded by section 1057.”

“A writ issued upon an undertaking unaccompanied by an affidavit of the sureties, as required by said section 1057, is irregularly and improperly issued, and should be discharged upon application.”

“The undertaking upon attachment stands upon the same ground.”

Synopsis

Attachment—Affidavit—Statement of Indebtedness.—An affidavit for attachment, which alleges a specific indebtedness of defendants to the plaintiff in a principal sum, is not vitiated by referring to “interest and attorney’s fees,” without further specification; but is sufficient to sustain the attachment at least to the extent of the principal sum.

Id.—Demand Stated in Complaint—Attachment fob Less Amount. The writ of attachment should not be issued for an amount in excess of the demand set forth in the complaint; but it may be for an amount less than the demand set forth in that pleading.

Id.—Undertaking—Defective Affidavit of Sureties—An undertaking on attachment is insufficient to sustain the writ, if the affidavit of the sureties omits to state the material fact that they are householders or freeholders.

Id—Discharge of Writ—A writ issued upon an undertaking not accompanied by an affidavit of the sureties, as required by section 1057 of the Code of Civil Procedure, is irregularly and improperly issued, and must be discharged upon application.

Id.—Construction of Code—Proceedings for Attachment not Amendable.—Section 558 of the Code of Civil Procedure, requiring that an attachment must be discharged, if improperly or irregularly issued, must be held to control and limit the general provisions of section 473 of that code, relative to the amendment of pleadings or proceedings in furtherance of justice. Neither an affidavit nor an undertaking on attachment is amendable, if not sufficient to sustain the writ.

GAROUTTE, J. This appeal is taken from an order refusing to discharge a writ of attachment. The motion to discharge the writ was based upon three grounds: 1. The amount of plaintiffs demand is not stated in the affidavit for attachment; 2. The writ of attachment does not state the amount of plaintiff’s demand in conformity with the complaint; 3. The undertaking on attachment does not show that the sureties are freeholders or householders.

1. The affidavit for the writ of attachment states that the “defendants in said action are indebted to the plaintiff in the sum of five hundred dollars and interest and attorney’s fees, money of the United States.” The affidavit directly alleges the specific indebtedness of five hundred dollars, and to that extent at least will sustain the writ of attachment.

2. It is claimed that the amount stated in the writ of attach-[208]meat must be the same as the amount of the demand set out in the complaint. The writ of attachment should not be issued for an amount in excess of the demand set forth in the complaint. But it may be for an amount less than the demand set forth in that pleading. (De Leonis v. Etchepare, 120 Cal. 407.)

3. The undertaking on attachment does not show the sureties thereon to be either householders or freeholders. Section 539 of the Code of Civil Procedure provides: “Before issuing the writ the clerk must require a written undertaking on the part of the plaintiff in a sum not less than two hundred dollars, and not exceeding the amount claimed by the plaintiff, with sufficient sureties to the effect,” et cetera. Section 1057 of the same code declares: “In any ease where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must, except in the case of such a corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the state, and are each worth the sum specified in the undertaking or bond over and above all their just debts and liabilities, exclusive of property exempt from execution.” Beading these two sections together, it is plain that the clerk has no authority to issue a writ of attachment unless the request is accompanied by an undertaking, with an affidavit attached setting forth the facts demanded by section 1057. Such affidavit must accompany the undertaking, for the law demands it. That the sureties upon the undertaking are either, householders or freeholders is a material part of the affidavit. It is probably the most material fact demanded by the affidavit. If the affidavit may omit this statement, then the entire affidavit goes for naught, and an undertaking without any affidavit of the sureties whatever would support the writ, even as against a motion by the defendant to discharge it. A writ issued upon an undertaking unaccompanied by an affidavit of the sureties, as required by said section 1057, is irregularly and improperly issued, and should be discharged upon application.

Tibbet v. Sue

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