Brownlee v. Riffenburg

Belcher, C. This action is upon an undertaking, executed by the defendants, for the release of property taken under a writ of attachment, in an action wherein the respondent here was plaintiff, and one W. D. Lewis was defendant. The cburt below gave judgment for the plaintiff, and the defendants have appealed from the judgment, and an order denying their motion for a new trial. Tl'ie court found that the plaintiff, Brownlee, commenced an action against Lewis, for the recovery of mojaey, in the superior court of San Diego County, and too|c out and caused to be levied on the property of Leváis a writ of attachment; that after the levy, the de3 executed and filed in court, for the benefit [448] of plaintiff, and pursuant to sections 554 and 555 of the Code of Civil Procedure, the written undertaking sued upon; that upon the filing of the undertaking, the court ordered all the property attached to be released and returned to Lewis, and the sheriff thereupon released the same; that such proceedings were afterwards had in the action that the plaintiff recovered judgment therein for the sum of $524.30, no part of which had been paid; that after the recovery of the judgment, and before the commencement of this action, plaintiff demanded of Lewis that he redvliver the property so levied upon to the sheriff of the county, to be applied to the payment of his judgment, and also demanded of the defendants, in the possession and custody of one of whom the attached property had been left by Lewis, that they redeliver the same to the sheriff, to be applied to the payment of said judgment; that neither Lewis nor the defendants delivered the property to the sheriff, and that upon their failure to do so, plaintiff demanded of defendants that they pay him the full amount of his judgment, which they failed and refused to do; and that no execution was ever issued on the said judgment. Appellants contend that no action can be maintained upon an undertaking given pursuant to section 555 of the Code of Civil Procedure, until an execution has been issued and returned unsatisfied, in whole or in part; and in support of their contention, they cite section 552 of the same code, which reads as follows: “ If the execution be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 540 or section 555, or he may proceed as in other cases upon the return of an execution.” The argument is, that this section makes the issuance and return of an execution a condition precedent to the right to commence an action. That the undertaking here sued upon was given pursuant to sections 554 and 555 of the Code of Civil Procedure is alleged in the complaint, recited in the instrument, and found by the court, and it must .there [449] fore be regarded as a statutory undertaking. This being so, we think the contention of the appellants must be sustained. Section 552, by providing that if the execu-. tion be returned unsatisfied, in whole or in part, the; plaintiff may prosecute, etc., in effect, declares that unless or until an execution is issued and returned, no such prosecution shall be had. If this be not the meaning and purpose of the section, then, so far as we can see, it has no meaning or purpose, and might be stricken from the code without affecting any right or impairing any remedy whatever. In Smith v. Fargo, 57 Cal. 157, the same point was: made, and the court said: “In support of the first point, appellant relies upon section 552 of the Code of Civil Procedure; but that section has no application to the. case, for the reason that the undertaking was not given pursuant to section 540 or section 555 of the code. It was not a statutory undertaking, and cannot be held valid and binding as such.” From this language, the necessary inference would seem to be, that if the undertaking had been a statutory one, given pursuant to the sections referred to, then section 552 would have been applicable and controlling. Appellants also contend that the demands for the redelivery of the attached property should have been made by the sheriff to whom it was to be delivered,, and not by the respondent, and that as made the demands were insufficient. The undertaking was, that, the “ defendant will, on demand, redeliver such attached property so released to the proper officer,”" etc. This is also the language of the code (Code Civ. Proc., sec. 555); and in it we see nothing to indicate an intention to limit the right to make demand to the- officer. On the contrary, it would seem that the- plaintiff, in-whosebehalf the demand is to be made, might himself make it, and it would only be necessary that the officer be clothed with authority te receive the property and sell it. It follows that the judgment and order should be reversed, and the cause remanded for a new trial. [450] Haynes, C., and Vanclief, C., concurred. For the reasons given in the foregoing opinion, the lodgment and order are reversed, and the cause re-jg^Uíied for a new trial. j De Haven, J., McFarland, J., Sharpstein, J.