No. 5311 | Cal. | Jul 1, 1877
The complaint shows that the undertaking sued on was executed to procure the setting aside of a judgment, and the release of property theretofore taken on attachment; but fails to allege that the property attached was released, or the judgment set aside, upon the execution of the undertaking. It has been repeatedly held by this Court that such omission renders a complaint substantially defective. (Palmer v. Melvin, 6 Cal. 651" date_filed="1856-07-01" court="Cal." case_name="Palmer v. Melvin">6 Cal. 651; Williamson v. Blatten, 9 Cal. 500" date_filed="1858-07-01" court="Cal." case_name="Williamson v. Blattan">9 Cal. 500; Nickerson v. Chatterton, 7 Cal. 568" date_filed="1857-07-01" court="Cal." case_name="Nickerson v. Chatterton">7 Cal. 568; The County of Los Angeles v. Babcock, 45 Cal. 252" date_filed="1873-07-01" court="Cal." case_name="County of Los Angeles v. Babcock">45 Cal. 252 Curtis v.Richards, 9 Cal. 37.)
The actual levy of the attachment, and entry of the judgment, by default, were by-gone transactions, to which the sureties were strangers at the time of executing the undertaking. In order, therefore, to support the undertaking, it was necessary to-show some new consideration moving at the time, to wit, the. release of the property, and the setting aside of the judgment. A promise by one man to pay another’s debt is nudum pactum,. without a present consideration. . ( Comstock v. Breed, 12 Cal. 286" date_filed="1859-01-15" court="Cal." case_name="Comstock v. Breed">12 Cal. 286.)
The fact that the undertaking is in form a common-law bond does not alter the case. It was given under the statute (Code of Civ. Pro. secs. 540-555) and was substantially in conformity therewith. ( Curriac v. Packard, 29 Cal. 199.)
George W. Tyler, for the Respondent.
It is not true that this action is brought upon an “ undertaking ” either to set aside a judgment, or to release an attachment. It is brought upon a common-law bond. There is no provision of the Code for an “ undertaking ” in consideration of setting aside a judgment. It is true there is a provision of the Code for an Undertaking to be given for a release of attachment under certain circumstances, but this is not an undertaking of that kind.
There is no allegation found in the complaint to the effect that the judgment mentioned in the undertaking sued on was set aside, or that the attachment therein named was released, and the demurrer should have been sustained for that reason. (Palmer v. Melvin, 6 Cal. 652" date_filed="1856-07-01" court="Cal." case_name="Smith v. Andrews">6 Cal. 652; County of Los Angeles v. Babcock, 45 Ibid. 252, and other cases cited in the appellant’s points.)
, Judgment as to defendant Paul Neuman reversed, and cause remanded, with directions to sustain the demurrer to the complaint.