13 P.2d 673 | Cal. | 1932
This is an appeal from a judgment for the plaintiff in an action to recover on an undertaking given to prevent an attachment.
The undertaking recited the commencement of an action by the plaintiff against Leonards Company to recover the sum of $14,748.30; the issuance of a writ of attachment in that action and the desire of the defendant Leonards Company to prevent the levy of the same. The sureties on the bond to prevent the attachment, who are the defendants herein, "in consideration of the premises and to prevent the levy of said attachment", undertook and promised that "if the plaintiff shall recover judgment in said action against Leonards Company" they will pay to the plaintiff on demand the amount of the judgment not exceeding the sum mentioned. In the attachment suit the plaintiff recovered judgment against the defendants therein including Leonards Company in the sum of $10,910.90, with interest. *145
In the present action the defendants interposed defenses on two theories: First, that the attachment proceedings were illegal and void and the bond given to prevent such an attachment was therefore a nullity. Second, that the judgment in the attachment suit was not recovered on the cause of action upon which the attachment was issued. The trial court rejected these defenses and rendered judgment against the sureties on the bond, from which judgment this appeal is taken. The only question presented is whether the defendants should have prevailed on either of said defenses.
On the trial the judgment-roll in the attachment suit was introduced in evidence. The complaint in that action alleged four causes of action. The first was a common count for money had and received in the sum of $14,748.30. The second was for the conversion of 10,000 shares of stock of Comstock Silver Mining Company and cash in the sum of $1750, of a total value of $9,950. The third charged the conversion of the sum of $2,010.90 paid by the plaintiff as the purchase price of stock which he never received; and the fourth was for the conversion of shares of stock and cash of the total value of $2,450. The prayer was for the recovery of the sum of $14,748.30 with interest.
The defendants contend that the plaintiff's real grievance in that action was founded in tort and not on a contract for the payment of money, as provided by section 537 of the Code of Civil Procedure; that the attachment proceedings were void and that there was therefore no consideration for the undertaking.
The question for determination is whether the rule stated inPassow Sons v. United States F. G. Co.,
[1] Stone v. Superior Court,
The case of Passow Sons v. United States F. G. Co.,supra, was an action upon an undertaking given to release an attachment. The defense interposed was that the averment in the affidavit in support of the attachment, that the debt was not secured by a lien, was false. There it was said: "No attack was made upon the attachment by Bowman *147
[the defendant] in the main action. Instead of moving that it be dissolved on the ground that the affidavit that the debt was not secured by a lien was false, he procured the exemption of his property from the levy by giving the undertaking here sued on. In this condition of affairs the present defendant executed the undertaking sued on. It must be presumed to have accepted the conditions then existing as the measure of its rights, and to have executed the undertaking with that understanding. The principle is settled in this state that a surety upon an undertaking given under section 540, to release an attachment, cannot interpose the objection, in a suit upon such undertaking, that the property attached, if any, was not subject to levy, or that the attachment was irregularly issued because of a false affidavit filed by the plaintiff to procure it. In McMillan v.Dana,
[2] The doctrine of the Passow and like cases is controlling here. The consideration for the undertaking in the present case is, as recited therein, the prevention of the levy of the writ of attachment, and supports the promise on the part of the defendants as sufficiently as the promise to release the attachment in the Passow case. If, on collateral attack, the fact that the affidavit is false as to the unsecured status of the debt is no defense, then the falsity of the affidavit as to the true character of the plaintiff's cause of action as disclosed by the proof can be no defense, where, as here, the allegations of the complaint and the averments of the affidavit are primafacie sufficient. If the defense is good in the one case, it should be good in the other.
In Pacific Nat. Bank v. Mixter, supra, an attachment against the property of national banks was involved. Such an attachment was expressly prohibited by statute and it was held that the attachment proceedings were on that account void and ineffective for any purpose because issued without any authority of law. [3] As to the present case, there is authority of law for the attachment if the action counts upon a contract, express or implied, for the payment of money, based upon an affidavit reciting those facts; and we are of the view that the truth or falsity of such recitals cannot be tried in an independent action to recover upon the undertaking given to prevent or release such an attachment. In other words, as applied to the present case, the attachment proceedings in the former action were voidable only and are beyond inquiry on collateral attack. If it be deemed that the Mixter case is inconsistent with the language contained in the opinion of the Passow case, we *149 must conclude that nevertheless the latter controls the present case.
Nor is the case of Mudge v. Steinhart, supra, opposed to this view. The action in Koehler v. Leonards Company wasin personam, wherein the court without question had jurisdiction of the parties and the subject matter. The case ofMudge v. Steinhart, supra, was an action in rem, wherein the jurisdiction of the court depended on the validity of the attachment proceedings. Here the question whether the plaintiff's grievance in the action of Koehler v. Leonards Company was based on contract or tort was a matter not of jurisdiction but of evidence as to which the complaint upon which the attachment was based was an important but not a conclusive factor. (SanFrancisco Iron Metals Co. v. Abraham,
[4] The defendants further contend that said undertaking was issued only upon the first cause of action stated in the complaint in the case of Koehler v. Leonards Company and that as the court in that action made no findings upon the issues raised by the first cause of action, they are not liable on the undertaking. A complete answer to this contention is that the undertaking is not so limited. The defendants undertook and promised that if the plaintiff shall recover judgment "in said action" against the defendant, Leonards Company, they will pay to the plaintiff the amount of said judgment. The words "in said action" must be taken in their ordinary meaning, unless otherwise expressly limited, and when so considered they refer to "the right or power to enforce an obligation", and the complaint, comprising all of the counts or causes of action therein set out, is a statement of the nature of the obligation or obligations sought to be enforced in the action. (See Frost v. Witter,
The judgment is affirmed.
Waste, C.J., Seawell, J., Curtis, J., Preston, J., Langdon, J., and Tyler, J., pro tem., concurred.
Rehearing denied *150