Jones v. Leslie

RANKIN, J., pro tem. This is an action to recover judgment upon an undertaking given by defendants as sureties for Balboa Motor Corporation, a corporation, to obtain the release of property attached and prevent the further levy of a writ of attachment issued out of the Superior [467]Court of Orange County, in an action wherein H. O. Jones was plaintiff and Balboa Motor Corporation, a corporation, was defendant. The bond was given before the return of the writ by the sheriff and pursuant to the provisions of section 540 of the Code of Civil Procedure. Said bond, after reciting the issue and levy of the execution, and that the defendant was desirous of having its property released from the attachments, by its terms bound the defendants to the effect that, in consideration of the release from said attachment of the property levied upon, said sureties do jointly and severally undertake in the sum of $10,600 and promise that, in case plaintiff recover judgment, they will on demand pay to plaintiff the amount of such judgment, together with interest and costs. The bond was entitled in the action in which the writ of attachment was issued and was executed February 27, 1925, and on the same date approved by the judge and filed by the clerk of the court in said action. March 11, 1925, the sheriff made return on said writ of attachment, certifying as follows:

“I hereby certify that I received the within writ of attachment on the 21st day of February, 1925, and the defendant having given me a bond, as required in said writ, in an amount sufficient to satisfy the demand besides costs, I herewith return this writ of attachment without further service. ’ ’

Appellants contend that the undertaking sued upon is not a statutory bond because it was never delivered to the sheriff and that it never became effective as a common-law bond as it was never delivered to the plaintiff. It is conceded that the bond was not given pursuant to an order of release of attachment as provided in sections 554 and 555 of the Code of Civil Procedure, applicable when the writ of attachment has already been returned by the sheriff. Therefore, if the bond is effective as a statutory bond, it was given pursuant to section 540 of the Code of Civil Procedure. The only objection to it as such statutory bond is that it was not physically delivered to the sheriff. No statutory provision relating to delivery of the bond other than that found in said section 540 is cited.

The evidence as to the delivery of the bond consisted of the record showing it was filed in the pending ■ action by the clerk of the courts the testimony of the witness, Earl