Tibbet v. Sue

122 Cal. 206 | Cal. | 1898

GAROUTTE, J.

This appeal is taken from an order refusing to discharge a writ of attachment. The motion to discharge the writ was based upon three grounds: 1. The amount of plaintiffs demand is not stated in the affidavit for attachment; 2. The writ of attachment does not state the amount of plaintiff’s demand in conformity with the complaint; 3. The undertaking on attachment does not show that the sureties are freeholders or householders.

1. The affidavit for the writ of attachment states that the “defendants in said action are indebted to the plaintiff in the sum of five hundred dollars and interest and attorney’s fees, money of the United States.” The affidavit directly alleges the specific indebtedness of five hundred dollars, and to that extent at least will sustain the writ of attachment.

2. It is claimed that the amount stated in the writ of attach-meat must be the same as the amount of the demand set out in the complaint. The writ of attachment should not be issued for an amount in excess of the demand set forth in the complaint. But it may be for an amount less than the demand set forth in that pleading. (De Leonis v. Etchepare, 120 Cal. 407.)

3. The undertaking on attachment does not show the sureties thereon to be either householders or freeholders. Section 539 of the Code of Civil Procedure provides: “Before issuing the writ the clerk must require a written undertaking on the part of the plaintiff in a sum not less than two hundred dollars, and not exceeding the amount claimed by the plaintiff, with sufficient sureties to the effect,” et cetera. Section 1057 of the same code declares: “In any ease where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must, except in the case of such a corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the state, and are each worth the sum specified in the undertaking or bond over and above all their just debts and liabilities, exclusive of property exempt from execution.” Beading these two sections together, it is plain that the clerk has no authority to issue a writ of attachment unless the request is accompanied by an undertaking, with an affidavit attached setting forth the facts demanded by section 1057. Such affidavit must accompany the undertaking, for the law demands it. That the sureties upon the undertaking are either, householders or freeholders is a material part of the affidavit. It is probably the most material fact demanded by the affidavit. If the affidavit may omit this statement, then the entire affidavit goes for naught, and an undertaking without any affidavit of the sureties whatever would support the writ, even as against a motion by the defendant to discharge it. A writ issued upon an undertaking unaccompanied by an affidavit of the sureties, as required by said section 1057, is irregularly and improperly issued, and should be discharged upon application.

Bespondent asks the privilege of amending the undertaking, if it be held defective by this court. For such relief he invokes section 473 of the. Code of Civil Procedure, wherein amendments are allowed to pleadings or proceedings in furtherance of justice. In speaking as to an application to discharge a writ of attachment, the code says: “If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged.” (Code Civ. Proc., sec. 558.) This section is specific and expressly directed to the subject of attachments. It must be held to control and limit the general provisions of the aforesaid section 473. The law-making Body has declared what shall be the action of the court under the circumstances here presented, and such action demands that the writ should be discharged. It is said in Winters v. Pearson, 72 Cal. 553, that the affidavit on attachment is not amendable. The undertaking upon attachment stands upon the same ground.

For the foregoing reasons the order is reversed.

Harrison, J., and Van Fleet, J., concurred.