Brown v. Superior Court

PULLEN, P. J. This is a proceeding to prohibit respondents from prosecuting an action for replevin until an under[421]taking as required by section 1030 of the Code of Civil Procedure has been filed.

Prom the petition for the writ of prohibition it appears that an action was commenced in the Superior Court of the State of California, in and for the County of Humboldt, entitled “McMillan Process Co., a Corporation, Plaintiff, v. C. H. Brown, John Doe and John Doe Co., Defendants”. In the complaint plaintiff sought to recover from defendants two wood defiberizing machines, of which defendants had obtained possession by virtue of a conditional sales agreement, and alleged that defendants having failed to make the payments provided in the agreement, demanded the return of the machines or their value. Petitioner, sued as John Doe, was served with complaint and appeared in the action and demanded that an undertaking as provided in section 1030 of the Code of Civil Procedure be posted by plaintiff, a Nevada corporation, as security for all costs and charges which might be awarded against plaintiff. It appeared, however, that plaintiff, some time after the filing of its complaint, but prior to the demand for the security for costs, had caused to be levied a writ of replevin and .had filed an undertaking in the sum of $3,000 conditioned “for the return of said property to the defendants if return thereof be adjudged and for the payment to defendants of such sum as may from any cause be recovered against plaintiff ”.t No question is raised as to the sufficiency of said undertaking as a replevin bond, the only question presented being whether an undertaking given pursuant to section 512 of the Code of Civil Procedure fulfilled the requirements of the undertaking as provided for in section 1030 of the Code of Civil Procedure. Section 512 of the Code of Civil Procedure, dealing with claim and delivery of personal property, reads in part as follows:

“Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff, ... to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, such officer must forthwith take the property described in the affidavit, [422]