Hamilton v. Bell

HAYNES, C. The question for decision arises out of the following facts: In May, 1891, the “Auburn Opera House and Pavilion Association” brought suit against George M. Hill to recover the sum of one thousand dollars, claimed to be due upon contract, and caused a writ of attachment to be issued therein under which money and other property was attached. On September 22, 1891, on the application of the defendant in said action, the court fixed the amount of the bond or undertaking for the re delivery of the attached property at fifteen hundred dollars, and the defendants in this action became the sureties on such, bond, and the attached property was released and delivered to the defendant. In November, 1891, the cause came [94]on for trial, and at the conclusion of plaintiffs evidence the court granted defendant’s motion for a nonsuit. From that judgment and an order denying a new trial the plaintiff appealed, and this court, on March 9, 1893, reversed said judgment and order. (32 Pac. Rep. 587.) On January 9, 1895, said cause was again tried, and the plaintiff had judgment for the full amount of its claim and interest. Thereafter, in September, 1895, execution was issued thereon, and was returned wholly unsatisfied; and on November 25, 1895, said Auburn Opera House and Pavilion Association assigned to George W. Hamilton; the plaintiff in this action, its said judgment and said redelivery bond, and said Hamilton, after due demand for the delivery of said property, or payment of its value, brought this action against the sureties on said bond, and obtained judgment against them, and this appeal is from that judgment and an order denying a new trial.

' Appellants contend that the judgment of nonsuit entered against the plaintiff in the action in which the attachment was issued operated to discharge them from all liability upon said bond which was given to release the property attached in that vase.

They base this contention upon section 553 of the Code of Civil Procedure, which provides: “If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and moneys collected by the sheriff, and all the property attached remaining in the sheriff’s hands, must be delivered to the defendant or his agent. The order of attachment shall be discharged and the property released therefrom.”

Section 554 of the Code of Civil Procedure prescribes the proceedings to be taken to release property seized under the writ from the operation of the attachment, which is accomplished by giving the undertaking prescribed in section 555 of the Code of Civil Procedure, in an amount fixed by the court, conditioned “to the effect that in case the plaintiff recover judgment in the action, defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released.”