Ramirez v. Hartford Accident & Indemnity Co.

YORK, P. J. This action was commenced on April 18, 1936, to recover $2,000 from respondent indemnity company upon an undertaking on attachment, and $6,000 from the individual respondents Giandeini, for damages alleged to have-been sustained by appellant by the issuance of an unlawful attachment on April 20 and May 8, 1934, at the request of said individual respondents. Said attachment was issued in connection with an action brought by respondents Giandeini against appellant and his wife upon a promissory note secured by a second mortgage on real property without first exhausting the security. On the same day the respondent indemnity company executed its undertaking on attachment upon the condition, among others, that “if the said attachment is discharged on the ground that the plaintiffs are not entitled thereto under section 537 of the Code of Civil Procedure, the plaintiffs will pay all damages which the defendants or any of them may have sustained by reason of the attachment, not exceeding the sum specified in the undertaking”. On April 28, 1934, appellant, as defendant in the attachment suit, made a motion to dissolve the attachment on the ground that it was irregularly and improperly issued and that the security given for the obligation sued upon had not been legally exhausted prior to the bringing of the action on said promissory note.

In the meanwhile by virtue of the writ of attachment, the sheriff levied upon and seized personal property consisting of one Chevrolet truck, a stock of merchandise composed of groceries, certain fixtures and cash and held possession thereof for some ten days when on May 1, 1934, the attachment was released pursuant to a third-party claim filed by Mercedes Ramirez, a sister of appellant, who claimed ownership of the attached property under a duly recorded notice of sale of stock in bulk dated January 27, 1933, and a bill of sale dated February 6, 1933, executed by appellant in favor of said sister. Immediately thereupon, the respondents Giandeini, as plaintiffs in the attachment suit, petitioned the court for [195]a determination of the title to said attached property and on May 10, 1934, the third party claim was disallowed and judgment was entered under date of July 13, 1934, by which it was ordered and determined that “title to the property attached by virtue of the writ of attachment issued out of this court and referred to in the third-party claim, was at the time of the levy and at all times since, up to and including the time of hearing on this claim, in the defendants, Salvador Ramirez and Marie Ramirez, in this action, and that the third party claimant, Mercedes Ramirez, had at no time any right, title or interest in and to the property referred to in her third party claim”. Thereupon, respondents Giandeini again attached the same property under an alias writ of attachment issued May 8, 1934.