No. 3,888 | Cal. | Jul 1, 1874
The undertaking sued on is entitled, “In the Justices” Court of Colusa Township,” and after reciting the commencement of an action to recover certain personal property, proceeds: “Now, therefore, we, John Stanton as principal, and A. Mead and G. W. Ware as sureties, do hereby agree and undertake, and are bound, in consideration of said delivery, in the sum of four hundred dollars, for the prosecution of the action for the return of the said property to the said defendant, if return thereof be adjudged by the said Court, and for the payment to the said defendant of such sum as may, for any cause, be recovered against the said plaintiffs, not exceeding the sum of four hundred dollars.”
If the statutory form had been followed, the plaintiff in this action (by reason of his judgment in the County Court) could have recovered the value of the property and costs. But the words “by said Court” limited the liability of his sureties, and the Justice’s Court did not adjudge a return of the property.
If it could be maintained that in a proper jurisdiction the plaintiff would be entitled to recover his costs, the amount of costs in this case was less than the sum of which the District Court had jurisdiction.
Nor can plaintiff recover by reason of the words, “and
Assuming that these words relate to any other than such sum as might be recovered by way of damages for the detention of the property, the judgment in this class of cases is in the alternative for the return of the property, or its value. Hence, the sureties to such an undertaking cannot be held to pay its value, unless a judgment for the return is rendered. The primary purpose of the action is the redelivery of the specific property, and by their contract the sureties were not to pay the value unless a return of the property should be adjudged by the Justice’s Court.
Judgment dismissing action and sustaining demurrer affirmed.
Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.