Gardner v. Donnelly

— This is an action upon an undertaking given to procure the release of an attachment levied on the property of the defendant Donnelly. The court below gave judgment for the plaintiff on the pleadings, and the defendants appeal. It is alleged, in the complaint, that the plaintiff commenced an action against Donnelly to recover the sum of $630, with interest; that a writ of attachment was duly issued in the action and levied by the sheriff upon certain personal property of the said defendant; that, four days thereafter, Donnelly, as principal, and the other defendants, as sureties, executed a written undertaking, which, after reciting the commencement of the action and the issuance and levy of the attachment, proceeds as follows: “And whereas, the said defendant J. W. Donnelly is desirous of having said property released from said attachment, now, therefore, we, the undersigned, residents and freeholders in the city and county of San Francisco, in consideration of the premises, and also in consideration of the release from

It is then further alleged that the undertaking was duly approved by the judge of the court, and filed in the action, for the use and security of the plaintiff; that thereupon, “in consequence and in consideration of said undertaking on the part of these said defendants, said property so, as aforesaid, attached, and so, as aforesaid, held, by the said sheriff of said city and county, under and by virtue of said writ of attachment issued in said action, was, upon motion of the said defendant J. W. Donnelly, ordered to be released from said attachment, and said attachment was ordered discharged by an order of said superior court, therein duly given and made in the words and figures following” (setting out a. copy of the order), and that, “immediately upon filing-of said undertaking, and in consideration thereof, the-property so attached, as aforesaid, was released from said attachment”; that, subsequently, the plaintiff recovered a judgment against Donnelly for $630, with interest and costs, and that an execution thereon was-taken out and placed in the hands of the sheriff, who returned- it unsatisfied, except as to the sum of $60.06, which sum was duly credited on the judgment; that thereafter, and prior to the commencement of this action,, demand in writing for the payment of the judgment, together with interest thereon, and costs, was made upon the defendants, but they, and each of them, wholly neglected and refused, and still neglect and refuse, to pay the balance due on the judgment, or any portion thereof..

1. In support of the appeal, counsel for appellants contend that a material issue was raised by the answer as to the release of the attached property, and that hence a judgment on the pleadings could not properly be granted. They say: “ The answer admits that an order for release had been made, as set forth in the complaint, but the fact that the sheriff disobeyed said order, and held oh to the property, is a defense. The sheriff seized the property at the instigation of plaintiff. The defendants here entered into the bond in suit on condition that the possession of the property should be restored to the attachment debtor.....The sheriff was plaintiff’s agent in seizing the property. He was presumptively his agent in refusing to release the property. It was plaintiff’s duty to make the sheriff let go, before a right of action on this bond could accrue.” (Citing McMillan v. Dana, 18 Cal. 339 .)

In the case cited, the facts on which the action was based are almost identical with those involved here, and the court, after setting out a copy of the undertaking sued on, proceeds to say: “The complaint avers that, after the execution and approval by the court of this paper, and in consequence and consideration of such undertaking, the said property and moneys so attached were released from said attachment, ‘as by the order of

In this case, the condition of the undertaking was, not that the property should be released from the possession of the sheriff, but from the attachment; and when the court ordered the attachment discharged, and the property released, this was fully accomplished, whether the sheriff still retained possession of it or not. If he did retain the possession, he did so wrongfully, and not for

It is further urged that the undertaking contains conditions not at all like those required by sections 554 and 555 of the Code of Civil Procedure, and that it is more onerous than the statutory undertaking, and therefore void on its face. But conceding all that is said of the undertaking to be true, still the conclusion does not follow. Section 640 of the same code also provides that an undertaking may be given when property “ has been or is about to be attached,” and we think the undertaking in question good under that section. Whether it be so or not, however, is immaterial. It was given for a purpose, which was accomplished when the order of the court was obtained, and it then became binding on its makers as a common-law obligation, and cannot now be repudiated by those who asked for and received its benefits.

2. The point is made that the complaint was prematurely filed as against the sureties, and therefore that it does not state facts sufficient to constitute a cause of action against them. This point is rested upon the fact that the complaint appears, from the indorsement thereon, to have been filed on the same day that demand for the payment of the judgment is alleged to have been made and refused. The argument is, in substance, th&st the liability of the sureties depended on a demand on Donnelly, and that they could have extinguished the obligation by an offer to perform, made within “reasonable hours” thereafter, and hence that they were not in default until midnight, or, at least, until the last “reasonable instant ” of the day on which demand was made had

It is also claimed that the alleged demand was insufficient, because it was “ for the payment of said judgment, with interest thereon, and costs,” and a portion of the judgment had already been paid. There might be something in this point if the defendants had offered or shown a willingness to pay the amount still due, but, as alleged, they and each of them neglected and refused “to pay the balance due on said judgment, or any portion thereof.” We think -the allegation of demand and refusal sufficient, certainly in the absence of a special demurrer.

3. Finally, it is urged that the judgment should be reversed, because there was no sufficient averment in the complaint of non-payment; and in support of this position counsel cite Scroufe v. Clay, 71 Cal. 123 . In answer to this, it is enough to say that the same point was considered and overruled in O’Hanlon v. Denvir, 81 Cal. 60 ; 15 Am. St. Rep. 19 ; Rankin v. Sisters of Mercy, 82 Cal. 88 ; and Grant v. Sheerin, 84 Cal. 197 .

Hayne, 0., and Foote, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.