Moore v. Mott

PER CURIAM. This action is upon an undertaking given to procure the release of property from an attachment. The writ was issued in an action brought by Alfred Moore, as plaintiff, against one Dorward. The undertaking is in the form prescribed by statute, and a copy is attached to the complaint. It recites the issuance and levy of the attachment, that the defendant had applied to the court for an order releasing and discharging the property from the operation of the attachment, and that the court had fixed the value of the property attached at $1,200; and in consideration of the premises the sureties (defendants herein) undertook and promised that, in case the plaintiff recovered judgment, defendants would, on demand, redeliver the attached property to the sheriff, to be applied to the payment of the judgment, or, in default thereof, the sureties would pay, on demand, to the plaintiff, the sum of $1,200. It is averred in the complaint that plaintiff, on the 8th of November, 1889, recovered a judg[270]ment against the said Dorward, in the said attachment suit, for $831.63, and that due demand had been made on said defendants for payment. The defendants, appearing by their respective counsel, (1) deny that plaintiff did recover judgment in the attachment suit against Dorward; and (2) aver that, in said attachment suit, Dorward recovered judgment against the plaintiff, wherein it was adjudged that the plaintiff take nothing by his said action, and that said Dorward recover his costs, which were therein taxed at $27.50; and that on the 10th of July, 1889, said Alfred Moore paid said judgment in full; and that since such payment no action has been pending in favor of said Moore against said Dorward. And it is contended that, if such were the facts, the judgment upon which the plaintiff depends was absolutely void, and also that defendants were discharged from their obligation on said undertaking by said judgment and its payment. The case was tried without a jury, and among other facts the court found: “(3) That plaintiff did not, prior to July 10, 1889, nor on or about the eighth day of November, 1889, nor at any other time, recover any judgment in said action against said Dorward, or in any other action, as alleged in the complaint, or otherwise; nor was any such judgment in favor of the plaintiff, Moore, ever entered or docketed in the office, of the clerk of Los Angeles county at any time. ’ ’

Upon the motion for a new trial it is contended that this finding was not sustained by the evidence. The sufficiency of the specification is complained of principally, as it seems to me, because more is stated than was necessary. The finding includes but one fact, and the specification is that the finding is not sustained by the evidence. It then proceeds unnecessarily to state what the evidence did show in relation to that issue. Though not required, this did not vitiate the specification. Prom the transcript it appears that plaintiff put in evidence a judgment in the ease of Moore v. Dorward, dated November 8, 1889, and docketed November 12, 1889. In this judgment it is recited that the cause “came regularly on for trial on the eighth day of November, 1889, M. Whaling, attorney, appearing for plaintiff; and a supplemental complaint having been filed and served upon defendant’s attorney, and no answer or demurrer having been filed, and the time allowed by law for answering or demurring having expired, a default