Keck v. Gross

This is an action on an undertaking given in pursuance of sections 559 and 730 of the on an order of arrest granted against this plaintiff in another action, in which there was a judgment in favor of this plaintiff (the defendant therein) for costs. The defants herein demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was granted, giving plaintiff judgment on the demurrer as frivolous, in pursuance of section 537 of the Code of Civil Procedure. This is an appeal from that order. We think the complaint sufficiently sets forth that the undertaking was duly given in pursuance of section 559 of the Code of Civil Procedure on the order of arrest. The failure of the plaintiff in the action in which the order of arrest was granted to have the undertaking marked “Approved ” by the judge will not relieve the sureties of responsibility thereon. Gopsill v. Decker, 4 Hun. 625 : Candee v. Wilcox, 14 Wkly. Dig. 245 . The party so arrested can resort, in the first instance, to the action on the undertaking, without pursuing his remedy against the party procuring the arrest. Wilson v. Field, Id. 378 . Order appealed from must be .affirmed, with costs and disbursements, to be taxed by the clerk.