Mullaly v. Townsend

VAN DYKE, J. The plaintiff commenced this action against the defendants as sureties upon a bond to release an attachment. The action in which the attachment was taken was brought by the plaintj/f against one Kelly, and certain personal property, consisting of the furniture in a hotel, was attached. On a former trial the court granted defendants’ [484]motion for a nonsuit, the defendants admitting that the plaintiff could prove the allegations of his complaint. On appeal by plaintiff from that judgment, this court reversed the same and remanded the cause: 119 Cal. 47, 50 Pac. 1066. In the opinion of the court in that case it is said: “The terms of the bond required Kelly to redeliver the attached property to the sheriff upon demand. As to this demand there seems to be no question. ' It was not only alleged that, in fraud of the plaintiff’s rights, he had mortgaged the property to Hunter, but it is also alleged that an execution upon the judgment was placed in the hands of the sheriff, with instructions to levy upon said property, and that Kelly and Hunter refused to deliver it to the sheriff, otherwise than upon the payment of the $500 to Hunter. This was a refusal to deliver the property. The plaintiff was not bound to accept part of the property, or to accept it all burdened with a lien placed upon it after the execution of the bond, and the release of the attached property thereunder.” On the second trial of the case the court found that subsequent to the giving of the said undertaking described in the complaint, dated November 21, 1895, and the release of said attached property, and prior to the levy of execution under said judgment, the said Thomas J. Kelly willfully, and in fraud of the rights of plaintiff to said property and satisfaction of said judgment recovered in said action, gave certain indenture of, mortgage upon said property to secure the sum of $500, alleged and claimed by said Kelly to be due from him to one Cal. F. Hunter. The court also found that the plaintiff caused an execution to be taken out on the judgment recovered against Thomas J. Kelly, and placed the same in the hands of the sheriff of Los Angeles county, with instructions to levy upon the furniture and articles attached, which were released upon giving the bond in question; that the sheriff levied said writ upon said property, but that thereafter he was informed that the same was subject to a mortgage to Hunter, as already found; and that on account of such mortgage, and not otherwise, he released the levy, and returned the execution wholly unsatisfied, the said K, elly having no other property out of which to make the amount of the said judgment, or any part thereof. The court also found that before the commencement of this action the plaintiff demanded of the defendants, and each of them, that