McNamara v. Hammerslag

MYRICK, J. Suit on an undertaking given under section 540, Code of Civil Procedure. The complaint avers the issuance of the attachment, and that under it the sheriff attached “certain property” (not stating what kind or of what value), and that the defendants, being desirous of having the property attached released therefrom, executed the undertaking. A copy of the undertaking is attached to the complaint. The undertaking, after reciting the issuance of the writ and the command thereof, states, “now, therefore, we,” etc., “in consideration of the premises, and to prevent the levy of said attachment, do hereby,” etc.

The point presented by the appellants is that, as the undertaking recites that it was given to prevent a levy, the allegation of the complaint being that it was given to release a levy, the judgment cannot be sustained. The question here involved was substantially considered in the first paragraph of [260]the first opinion in Preston v. Hood, 64 Cal. 405, 1 Pac. 487, though in that ease there was an allegation in the complaint that the undertaking was given to prevent the levy, and that upon the delivery of the undertaking the property was released. We think the point is not well taken.

Judgment affirmed.

We concur: Sharpstein, J.; Morrison, C. J.

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We concur in the judgment: Thornton, J.; McKinstry, J.

McKEE, J., Dissenting. I dissent. The allegations of the complaint are that, in an action, a writ of attachment was issued, which was levied on certain property belonging to the defendant in the action; that for the purpose of having the property attached released from the attachment, “the defendants herein executed and delivered to the plaintiff a written undertaking, a copy of which is hereto attached, marked exhibit ‘A,’ and made a part of this complaint”; and that upon the execution and delivery of the bond, the attachment was discharged and the property was released, yet the defendants have refused, on demand, to pay the amount of the judgment rendered in the attachment suit against their principal in the bond, and hence the suit upon the bond. Reference in a pleading to an exhibit as part of a pleading is not pleading; it is merely evidential: Mayor and Common Council of Los Angeles, etc., v. Signoret, 50 Cal. 298. The cause of action as stated in the complaint is therefore upon a bond given for the release of property which had been attached.