Morgan v. Menzies

Morrison, C. J.: The first question presented in this case, upon which it will be necessary for us to express an opinion, is the following: Were the sureties liable on the undertaking sued on? The City and County of San Francisco commenced an action against Morgan to recover a certain amount of money which, it was claimed, he owed the plaintiff in that action, and procured a writ of attachment to be issued, which was levied on shares of mining stock, the property of Morgan. Before the writ was issued, defendant Menzies and one Ashbury (since deceased), executed an undertaking in the form prescribed by the statute, concerning attachments. The case of the City and County of San Francisco against Morgan terminated adversely to the City and County, and the case we are now considering was the result. The undertaking is in the sum of fifteen thousand dollars, and the judgment in the Court below was for that amount against the sureties on the undertaking. From that judgment, as well as from an order denying a motion for a new trial, this appeal is prosecuted. ‘ At the time the undertaking sued on was executed, Section 1058, C. C. P., read as follows; “ In any civil action or proceeding wherein the State or the people of the State is a party plaintiff, or any State officer, in his official capacity, or on behalf of the State, or any county, city or town, is a party — 347 — plaintiff or defendant, no bond, written undertaking or security can be required of the State, or the people thereof, or any officer thereof, or of any county, city or town; but, on complying with the other provisions of this Code, the State, or the people thereof, or any State officer acting in his official capacity, have the same rights, remedies and benefits as if the bond, undertaking or security were given and approved as required by this Code.” It is claimed that the foregoing section does not apply to the City and County of San Francisco, because that form of consolidated government designated and known as a city and county is not mentioned in the statute. It would be unfortunate if Section 1058 required such a construction. But it does not, as was substantially held in the case of The People v. Hoge, 55 Cal. 612. The Court in that case had under consideration Section 8 of Art. xi of the new Constitution, Which provides that any city containing a population of more than one hundred thousand inhabitants may frame a charter, and it was held applicable to the City and County of San Francisco. Again, Section 2920 of the Political Code speaks of the City and County of San Francisco in the first part of the section, and in the latter part thereof refers to it as a city or town; and by Section 3901 of the same Code it is declared that “A county is the largest political division of the State, having corporative powers.” The Court decided in Knox v. Woods, 8 Cal. 545, that “an account audited against the City of San Francisco but not paid at the time the Consolidation Act went into effect,, need not again be audited to entitle it to payment.” There is nothing m principle or reason that should exempt the City and County of San Francisco from the operation of the section referred to. It constitutes one of the largest political subdivisions of the State, possessing and exercising all the powers of a county government, and is as much such a government as any county in the State. We, therefore, feel no hesitation in asserting that the City and County of San Francisco is embraced in Section 1058 of the Code of Civil Procedure. To entitle it, therefore, to an attachment against the property of Morgan it was only required to file the complaint and affidavit prescribed by the Code of Civil Procedure, — 348 — and thereupon it became the duty of the Clerk • to issue the writ. The undertaking filed in the case was not, therefore, a statutory undertaking. But it is contended, on behalf of respondent, that it was as good as a common law bond. We are familiar with, the cases which hold that a voluntary bond may be binding as a common law obligation, in the absence of any statute requiring the execution of a bond. In Sheppard and Morgan v. Collins, 12 Iowa, 570, the Court says: "Nor does it follow that a bond is necessarily invalid, though not authorized by statute. It will be good as a common law bond, when it does not contravene public policy nor violate a statute, and be binding on the parties to it.” To the same effect and in almost the same language, is the case of Barnes v. Webster, 16 Mo. 258. But it is unnecessary for us to multiply authorities upon this point, as the undertaking in this case, was, in our opinion, against the policy of the law. The policy of the law requires that the State shall be allowed to sue out an attachment without giving a bond or undertaking, and the Code has placed the city and county upon the same footing. There was no authority in the officer (the Clerk) to take the bond, but, on the contrary, it was his duty to issue the writ without it; there was no consideration for the undertaking, it was given in contravention of the policy of the law, and was therefore void. (See McCoy v. Briant, 53 Cal. 247; Dillon’s Municipal Corporations, Sec. 447.) Second-—But there is another defense presented by the record which is equally fatal to the maintenance of plaintiff’s action. The conditions of the undertaking is, that “ we, the undersigned residents of the City and County of San Francisco, in consideration of the premises and of the issuing of this attachment do jointly and severally undertakein the sum of fifteen thousand dollars, and promise to the effect that if the said defendant recovers judgment in said action, the said plaintiff will pay all costs that may be awarded to the said defendant and all damages which he may sustain by reason of said attachment, not exceeding the sum of fifteen thousand dollars, together with a reasonable attorney’s fee.”. It will be observed that the undertaking on the part of the defendants is that the plaizntiff in the action will pay, and — 349 — there is no averment in the complaint that it has not paid, or that even a demand has been made. . There is not, therefore, any averment in the complaint of a breach which would give the plaintiff in this case a right of action against the defendants on the undertaking. “The breach of the contract being obviously an essential part of the cause of action, must in all cases be stated in the declaration.” (Chitty on Pleading, 332; 1 Saunders on Pleading and Evidence, 216); and the omission of a breach cannot be aided or cured even by verdict. (1 Chitty on Pleading, 327.) Judgment and order reversed, Sharpstein, Myrick, McKee, Ross, and Thornton, JJ., concurred.