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with this provision of the contract. The tions of the sufficiency of the affidavit on which only attempt to do so was the fraudulent | the attachment was based and of the writ itself. alteration of the orders. In other words, the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 5, Attachment, $$ 1243, 1244.] character of the transaction leing left out of

6. SAME-ACTIONS-TIME TO SUE. consideration, there was not such a com

Under Code Civ. Proc. $ 552, providing pliance with the coutract upon plaintiff's that, where an execution be returned unsatisfied, part as to permit it to recover. No rescission plaintiff may prosecute any undertaking given was necessary. Field v. Austin, 131 Cal. 379, pursuant to sections 540 and 555, relating to

the giving of an undertaking on attachment, an 63 Pac. 692. Courts are not vigorous in com- action on an undertaking given to procure the pelling an accounting by the person defraud- release of property levied on under a writ of ated at the request of the party guilty of the

tachment may be brought immediately on the fraud. More v. More, 133 Cal. 193, 63 Pac.

return of the execution against the judgment

debtor unsatisfied, and it is not necessary to 1014. “Parties so engaged are not the ob- postpone the bringing of the action for six jects of the special solicitude of the courts."

months from the date of the judgment. Neblett v. Macfarland, 92 U. S. 101, 23 L. Ed.

7. TRIAL-FINDINGS-CONSTRUCTION. 471.

A finding that each and every allegation

contained in plaintiff's complaint is true is but Judgment of superior court affirmed.

the express finding of that which is impliedly

found by judgment for plaintiff on the pleadWe concur: ALLEN, P. J.; SHAW, J.

ings.
8. JUDGMENT-JUDGMENT Ox PLEADINGS.

Under Code Civ. Proc. $ 581, prescribing

when an action may be dismissed or a nonsuit (5 Cal. App. 740)

entered, and section 582, providing that in evBAILEY V. AETNA INDEMNITY CO. OF ery other case judgment must be rendered on HARTFORD, COIN. (Civ. 3.3.)

the merits, a judgınent on the pleadings is a

judgment on the merits, so far as its conclusive(Court of Appeal, Second District, California.

ness is concerned. June 18, 1907.)

9. ATTACHMENT - UNDERTAKING - ACTIONS1. ATTACHMENT-UNDERTAKINGS LIABILITY DEFENSES-PLEADING. OF SURETY.

A surety, when sued on his undertaking givAn undertaking given to release property en to procure the release of property attached attached under a writ of attachment, which under a writ of attachment, cannot avail himshows the title of the court and cause in which self of the defense that the judgment in the atit was given, which recites the amount of plain- tachment action was rendered without a fair tritiff's claim against defendant, the issuance of the al, without alleging the particular facts not attachment and levy on "certain property and presented on the trial, and a surety, claiming effects of" defendant, the desire of defendant to that there was a collusive failure to introduce release the property, and which declares that the available evidence constituting a defense to the surety, in consideration of the premises and the action, must plead the details and his ability to release of the property, undertakes in a speci- supply on a new trial the evidence willfully supfied sum and promises that, in case plaintiff re- pressed. cover judgment in the action, defendant will pay 10. APPEAL- REVIEW-IMMATERIAL QUESthe amount thereof with costs, substantially TIONS. conforms to Code Civ. Proc. $ 540, relating to Where a judgment was properly rendered undertakings on attachment, and, if voluntarily on the pleadings, questions relating to the ingiven to secure a redelivery of the property, is troduction of evidence and of the weight thereof valid at common law.

are immaterial on appeal. [Ed. Note.--For cases in point, see Cent. Dig. [Ed. Note.--For cases in point, see Cent. Dig. vol. 5, Attachment, $ 638.]

vol. 3, Appeal and Error, $ 3331.] 2. SAME - RECITALS - CONCLUSIVENESS ON SURETY.

Appeal from Superior Court, Los Angeles The recitals in an undertaking given to County; W. P. James, Judge. procure the release of property attached under a

Action by C. C. Bailey against the Ætna writ of attachment are conclusive against the obligor therein, whether the underaking is a

Indemnity Company. From a judgment for statutory or a common-law bond.

plaintiff, defendant appeals. Affirmed. 3. SAME-VALIDITY. Where a writ of attachment directs the

Drew Pruitt, Charles L. Batcheller, and sheriff to take an undertaking, and either not at

Thomas C. Ridgway, for appellant. Sidney tach the property or release the same, as the J. Parsons and O. P. Widaman, for respondcircumstances require, an order for the release

ent. of the property attached on the giving of an undertaking to procure the release thereof is not nennasary.

TAGGART, J. This is an action to recov(Ed. Note.-For cases in point, see Cent. Dig.

er from the surety, on an undertaking given vol. 5, Attachment, $ 637.]

to release an attachment, the amount of the 4. SAME-RECITALS-CONCLUSIVENESS. The surety, in an undertaking given to re

judgment rendered against the attached debtlease property attached under a writ of attach

Judgment was for plaintiff, and defendment, is estopped by the recitals therein from ant appeals from the judgment, and from an asserting that no property was levied on by vir

order denying its motion for a new trial. tue of the writ. Ed. Xote.-For cases in point, see Cent. Dig.

Plaintiff brought an action in the superior vol. 5, Attachment, $ 1213, 1211.)

court of Los Angeles county against the Pa5. SAME.

cific Furniture & Lumber Company to reThe recitals, in an undertaking given to cover judgment on two promissory notes with procure the release of property attached under a

interest, and attorney's fees as provided writ of attachment, that the writ of attachment was issued and property levied on thereunder,

therein, and on an account for work and etc., are conclusive on the surety on the ques- i labor. He caused an attachment to be issued

and levied on the property of the said Pacific Furniture Company at the time the action was begun. On the same day (April 14, 1901) the defendant herein, the Ætna Indemnity Company, executed and delivered to the sheriff, who held the attached property of the furniture company, the instrument here sued on, and the attached property was released and the attachment discharged. On the trial in the attachment suit the indebtedness was adınitted by the defendant furniture company, but it was claimed that it was not due by reason of the execution by plaintiff and certain other creditors of the furniture company of a certain contract for forbearance extending the time of payment to September 23, 1903. Findings on this issue were for plaintiff, and on the 15th day of June, 1990), judgment in his favor was rendered against the Pacific Furniture Company for the full amount claimed. The present action was begun July 24, 1905, to recover from defendant herein, as surety on the undertaking given to release the attachment, the amount of such judgment. Defendant set up the same defense pleaded in the attachment suit, and alleged that the issues so raised were not fairly tried because of collusion between plaintiff and the defendant in the attachment suit, and asks that they may be tried on its answer in this action.

In support of the appeal, it is urged that it appears from the complaint that the action was prematurely brought because the judgment was not final under section 1049, Code Civ. Proc.; that there is no allegation of indebtedness from defendant to plaintiff; that the writ of attachment was void; that it was not alleged that any property was levied upon by virtue of said writ of attachment; and that, if the writ of attachment was not void, the property was not shown to have been released as required by law. The instrument sued on is attached to and made a part of the complaint. The allegations as to the manner of its execution and delivery would justify the assumption that it was given pursuant to the provisions of sections 554 and 555 of the Code of Civil Procedure, although these sections are not named. Some of appellant's objections to the pleading are based upon the instrument being so given, and upon this theory it is urged that the complaint fails to state a cause of action because it does not allege a compliance with all the steps and proceedings taken under those sections. To avoid these objections respondent claims the instrument to be an undertaking given under section 540 of the Code of Civil Procedure. An examination of the instrument itself shows that it is not strictly in the form required by either section 540 or section 555. The former section applies where the intention is to prevent the levy of an attachment, and the sheriff may accept an undertaking "in an amount sufficient to satisfy such demand (plaintiff's), besides costs, or in an amount equal to the value of

01 P.-27

the property which has been, or is about to be, attached." The latter section (555) provides for the release of an attachment by the court; in which event the court must require an undertaking, “to the effect that in case the plaintiff recover judgment in the action defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released."

The instrument pleaded shows the title of the court and cause in which given, recites the claim and amount of plaintiff's claim against defendant, the issuance of the attachment, and levy thereof on "certain property and effects of said defendant," and that defendant desires to release said property from the attachment; that the surety (defendant herein), in consideration of the premises and the release of the property attached, undertakes in the sum of $4,350, "and promises that in case the plaintiff recovers judgment in the action defendant will pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage interest and costs."

The bond is not a forthcoming or delivery bond, but, as shown by its own provisions and the allegations of the complaint as a whole, was given to the sheriff under section 540 for the purpose of preventing a continuance of the levy upon or further holding of property which had already been attached. It is not strictly such an undertaking as that section directs him to take, but is an indemnity bond given for the benefit of plaintiff to secure the release of the property of defendant, and it accomplished that purpose. The condition of it is that the obligors will pay the judgment in consideration of the release of the attachment. It substantially con. forms to the requirement of one clause of section 540 and the fair presumption, aided by the allegations of the complaint, is that it was executed with reference to that section. It would be immaterial here under which section it was given, if it were not that the meaning and intentions of the parties are to be ascertained by the light of the statute. Heynemann v. Eder, 17 Cal. 434. Such an undertaking may be given either to prevent or to release an attachment. Section 510; Curiac y. Packard, 29 Cal. 200. If voluntarily given to the sheriff to secure a redelivery or release of the property attached, it would be valid at common law (Palmer v. Vance, 13 Cal. 553), and its recitals are conclusive as against the obligor whether it be a statutory or common-law bond. McMillan v. Dana, 18 Cal. 339, p. 347. Quoting approvingly from the opinion in the case last cited, the Supreme Court says, in McCormick v. National Surety Co., 134 Cal. 513, 66 Pac. 741: "Nor does it matter whether the property was subject to the attachment or not,

That matter cannot be tried in this collateral seized that it might be available for the way. It is enough that the plaintiff had this execution of the judgment which plaintir property levied on as subject to his debt. and expected to and did subsequently obtain that the sureties procured its release upon against the Pacific Furniture Company in the stipulation that in consideration of such the superior court. Unless an appeal lia! release they would pay the amount of the been taken at once, and a stay bond given, judgment to be recovered by the plaintiff in the plaintiff could, and no doubt would, have the attachment suit." The same rules apply proceedel to sell the property attached to if the bond be considered as a common-law satisfy the judgment of the superior court. bond. Speaking of a bond given to release This, it is admitteil, coull have been cline', an attachment which was held not to have but it is claimiell that it is so only becaus: been given pursuant to either section 510 or of express statutuory authorization. It is section 5.5, Code Civ. Proc., the Supreme provided by section :5.52 that, if the executirin Court says: “Whatever the obligor re- be returned unsatisfied in whole, or in part, cites in a bond to be true may be taken as the plaintiff may prosecute any undertaking true against him, and need not be averred given pursuant to either section 510 or ser in a complaint on such bond, or proved on tion 353; and the complaint alleges an exethe trial." Smith v. Fargo, 57 Cal. 157. cution was issued on the judgment and reWhether the undertaking be in statutory turned wholly unsatisfieil. form or good only as a common-law bond is The attachment proceeding is merely ausimmaterial, Gardner V. Donnelly, 86 Cal. iliary to the main action (Porter v. l’ico, 55 372, 24 Pac. 1072.

Cal. 173), and the latter would go forward to Considering the points urged by appel- execution whether the sheriff hell the atlant in the reverse order of their mention, tached property or the undertakiny given for its contention that the attachment was not its release. There is nothing in the statute released as required by law is based upon to suggest that the bond given to release the assumption that the undertaking was

attachment shall operate as a stay bond to given under section 555 and an order of the prevent execution on the judgment for six court necessary for the release of the attach- months after its entry. For the protection of ed property. No order was required, as the the surety, it is required that an effort sball writ of attachment itself directed the sheriff be first made to execute against the judgment to take such an undertaking and either not debtor. Failing in this, the substitute for attach, or release the property attached, as the attached property is immediately availthe circumstances required. The allegation able, and the bond may be enforced at once. of the complaint that the Pacific Furniture In Cook v. Ceas, 113 Cal. 221, 77 Pac. 6.), Company "appeared in said action" may be (laimed by appellant to be decisive of this treated as surplusage. The defendant is es. case, the Supreme Court, on page 226 of topped by the recitals in its own written 1-43 Cal., page 67 of 77 Pac., says: "The obligation, the bond, from saying that no question, then, is reluced to this: When did property was levied on by virtue of the writ the order settling the account of the guardof attachment.

ian become a binding order?" The answer The complaint alleges an indebtedness from to this question was: “Not until the time defendant to plaintiff with sufficient clear- for appeal had passed.” The question here ness, and the case of Provident Mutual, is: When was execution on the judgment etc., v. Davis, 113 Cal. 253, 76 Pac. 1031, in the attachment suit enforceable? The cited by appellant, has no application here. answer is: As soon as entered (Code Civ. The recitals in the bond also conclude the Proc. $ 681), unless an appeal was taken at defendant here as to the sufficiency of the once and stay bond given. As well could it affidavit upon which the attachment was be said that it would be necessary to await based, and of the writ, itself. That the for- the six months within which an appeal mer was false, or the latter did not state might be taken before a demand for the rethe amount of the plaintiff's demands in turn of the property taken from the sheriff conforinity with the complaint, cannot be on a forthcoming bond could be made, or questioned by defendant. If these natters, the redelivery of the property compelleil. We or either of them, were open to question at think the case of Cook v. Ceas is easily disthis time and in this manner, the rulings tinguishable from the case at bar. of the trial court in this connection woulil The findings and judgment recite: A trial still have to be sustained. Porter v. Pion, of the cause before the court on its merits; 7.5 Cal. 173; Sorivener 1. Dietz, Os Cal. 1. the introduation of evidence by the plaintiff 8 Pac. 009: 296

Harvey p. Foster, 64 Cal. 2:76, ! and by the defendant; that the latter sought 30 Pac. $19.

to introduce testimony which was objected to This is an action on a bondi, and not on on the ground that the answer failed to state the judgment rendered in the action of Bar- a defense, and that the defendant thereupon Jey v. Pacific Furniture Co. The bond wils : announced that it elected to stand upon the given to take the place of the security obs- answer as framed and declined to amend tained by attaching certain personal proper- or offer further testimony. The transcript ty of the defendant in that action. The of the proceedings at the trial support these attachment issued and the property was raritals in every particular. This appellant

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contends, shows that the judgment was on the pleadings, the introduction of evidence the pleadings, and that therefore a new trial becomes mere surplusage, and questions of should be ordered, that the findings on the Its weight and admissibility are immaterial. evidence introduced may be stricken out and Judgment and order appealed from afthe judgment be made to declare on its face Ormed. that it is based on the pleadings. Considering the judgment as one rendered on the We concur: ALLEN, P. J.; SOAW, J. pleadings (which it is), the conclusion suggested by appellant does not necessarily follow. There is but one finding of fact by the court, and that is the general one that "each and every allegation contained in the plain

(6 Cal. A. 131) tiff's complaint are true." This is but the

DOHERTY V. CALIFORNIA NAVIGATION express finding of that which is impliedly

& IMP. CO. (Civ. 33S.) found by a judgment for plaintiff on the

(Court of Appeal, Third District, California. pleadings. A judgment on the pleadings is

July 12, 1907.) a judgment on the merits under our Code.

1. SHIPPING INJURY OF PASSENGER - Evi.

DENCE. Sections 581, 582, Code Civ. Proc.

In an action for injuries to a steamship The ruliry of the trial court as to the sufil- passenger by the negligence of the captain in ciency of the answer was correct. The de

letting plaintiff stand unsupported while helpnials therein are of conclusions of law and

less from intoxication, after the captain had

lifted him from the floor, so that plaintiff fell of those matters as to which defendant is

and broke his arm, evidence held to sustain a concluded by the recitals in the bond. The finding that the captain, with knowledge that facts alleged in the affirmative defense are

plaintiff was intoxicated to a helpless degree,

lifted him to his feet from the floor where he not sufficient to constitute either a defense

had been discovered asleep, and left him standor counterclaim. An answer claiming the re- ing without any support, by reason of which lief here sought by defendant must show not plaintiff fell to the floor and broke his arm, only the facts constituting the fraud which

without contributory negligence on his part,

and that by reason thereof he suffered pain and prevented a fair judgment from being ren

loss to the amount of $575. dered in the former action, but it must also

2. SAME-CARE REQUIRED. show that there was a good defense to the

Where the captain of a steamship disoriginal action upon the merits, and that covered a passenger lying in & drunken and the defendant will be able to present this de

helpless condition on the floor, and, with knowl

edge of his helplessness, lifted him to his feet, fense upon a new trial. These matters must

and left him without any support, whereupon be alleged, not in the form of conclusions, he fell and broke his arm, the captain did not or ultimate facts, but in the same manner as

exercise the full degree of care required by the facts constituting the fraud. That is,

rendering assistance sufficient in the case of a

sober man, but was bound to exercise such care the particular facts which were not present- as he could to avoid an accident in the situaed upon the trial of the original action, by tion presented to him. reason of the fraud complained of, must be 3. APPEAL - REVIEW - MATTERS OF DISCREset out, and accompanied by an allegation

TION-ABENDMENT.

Under Code Civ. Proc. $ 473, authorizing that the complaining party has the ability

the court to grant amendments in the interest to produce evidence upon any new trial that of justice, the exercise of the court's discretion may be granted to establish such facts as in that regard will not be disturbed on appeal alleged. In reaching this conclusion we

except where abuse of discretion is shown. recognize the rule invoked by appellant that

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $ 3825.] each case of fraud must be determined upon

4. PLEADING-AMENDMENT-CONFORMITY ΤΟ its own circumstances. Here it is claimed

PROOF. that there was a collusive failure to intro

Where, in an action against the owners of duce available evidence constituting a de- a vessel for injuries to a drunken passenger, the fense upon the original trial. The details of

case was subinitted withont argument, where

upon the trial judge stated what facts he rethis failure should be pleaded and the ability

garded as proven, and called for authorities on of the defendant in this action to supply, the duty which the officers of the boat owed to upon a nerv trial, the evidence which was a drunken man, it was a proper exercise of

discretion to permit plaintiff then to amend his willfully suppressed upon the former trial

complaint to conform to the facts so proven. should be clearly alleged. This is required to

[Ed. Note. For cases in point, see Cent. Dig. support a bill in equity to set aside a de- vol. 39, Pleading, 8 603.] cree for fraud, or because of newly discovered evidence. The same rule is proper here.

Appeal from Superior Court, San Joaquin Mulford v. Cohn, 18 Cal. 46, concurring opin

County ; Frank H. Smith, Judge. ion, Ilarrison, J.; Whitney V. Kelley. 94

Action by Barney Doberty against the Cal. 153, 23 Pac. 624, 15 L. R. A. 813, 28

California Navigation & Improvement ComAm. St. Rep. 106.

pany. From a judgment for plaintiff, and The other objections to the count's rulings

from an order denying defendant's motion for assigned as error need not be considered, as

& new trial, it appeals. Affirmed. they relate to the introduction of evidence Arthur L. Levinsky, for appellant. D. M. and its sufficiency. The judgment being on Young and W. N. Rutherford, for respondent CIIIPMAN, P. J. Action for personal in- "Seventh. That .plaintiff's said injury was jury. The cause was tried by the court not proximately caused by his own carelesssitting as a jury. Findings and judgment ness or negligence or contributory negligence, were for plaintiff, and the damages for the or by his drunkenness, but was proxiinately injury received by him were assessed at $375. caused by the negligent act of the captain of Defendant appeals from the judgment and said boat in placing him on his feet and turnfrom the order denying its motion for a new ing him loose unsupported when drunk to a trial.

degree of helplessness and asleep or apparentPlaintiff paid his fare and took passage on ly asleep. defendant's steamer at San Francisco bound "Eighth. That, by reason of the breaking for the city of Stockton. The circumstances of plaintiff's arm as above found, he suffered attending the injury and the facts upon physical pain, and was for five months inwhich the judgment rests are concisely set capacitated from working, and that bis armi forth in the following findings:

is still sore and painful, and will be for some “Fourth. That after the payment by said time, when employed at labor, by reason of plaintiff to the defendant of said fare, and all of which plaintiff has been damaged in while plaintiff was on said steamer as a the sum of $175, and that plaintiff was passenger on his way from said city, of San compelled to and did employ a physician and Francisco to said city of Stockton, and be- surgeon to treat his said arm and incurred an fore the completion of said trip, the servants indebtedness therefor of $100, and that he and agents of the defendant, employed by was thereby further damaged in the sum of said defendant in and upon said steamboat, $100." 'T. C. Walker,' and in the operation thereof, Appellant's main contention is that the and who were at said time in charge of and decision and judgment are not supported by in the management and control of said steam- the evidence. There is evidence that plaintiff er, 'T. C. Walker,' to wit, the captain of said was intoxicated when he came aboard the boat, carelessly and negligently raised plain- steamer. The captain testified: “When I tiff from the floor of said steamboat where first saw him on the dock, he was drunk, but plaintiff was lying in an intoxicated condi- he was able to walk; that is, by steadying tion, and placed plaintiff upon his feet, and himself against the passenger gangway. He carelessly and negligently turned plaintiff always steadied himself. I did not see him loose, and left him standing upon the floor walk without any support. I was apprised of said boat unsupported while intoxicated of the fact by what I saw that he needed and unable to stand without support, and support to stand alone." Plaintiff found his that by reason of thus being raised from way to the cabin, and not long after the the floor and left standing without support steamer was under way he was found lying when intoxicated, and being unable to stand on the cabin floor in the smoking room. An without support, plaintiff was caused to fall unsuccessful effort was made to arouse him upon the floor of said steamboat, and by and set him outo a scat, but he soon resumed reason of said fall plaintiff's left arm was his sprawling position on the floor. The atbroken.

tention of the captain was called to him "Fifth. That at the time the said captain by Mr. Fraser, the purser. The captain testiof said boat raised plaintiff from the floor fied: “I went with Mr. Fraser, and told of said boat and left bim standing unsupport- him to get off the floor, and he never paid ed plaintiff was intoxicated to a degree of any attention to me. He was asleep. I pickhelplessness and was unable to stand un- ed him up off the floor ; that is, I picked him supported, was asleep or apparently asleep, up off the floor and stood him on his feet. and was limp and made no attempt to get When I got him on his feet, he was standing on his feet, or to either assist or resist being very nearly erect, and I let go again, and placed upon his feet, and that before placing when I let go of him he stood for a second, plaintiff upon his feet and turning him loose and then fell backwards." Again he testithe said captain had knowledge of plaintiff's fied: "I saw the cabin watchman lift him drunken and helpless condition, and of the off the floor previous to the time I saw him fact that he was asleep or apparently asleep, there, which was after I had collected the and knew that he was liable to fall and tickets. I would say he was drunk. He was sustain injury if placed on his feet and left not beastly drunk. He didn't know hardly standing unsupported.

what he was doing, anyhow. I had already "Sixth. That plaintiff was intoxicated when seen it was necessary to pick him up when received as a passenger by defendant as he was down." It further appeared from the herein found, and that at and before the captain's testimony that, when he listed time plaintiff was so received the said cap- plaintiff to his feet, he made no effort to tain of said boat knew that plaintiff was in- support him or prevent his falling or attoxicated to such an extent as rendered it tempt to catch him as he was falling; that necessary for him to have support to enable plaintiff did not help himself in being put uphim to stand upon his feet; and said captain on his feet, but was "perfectly helpless" in knew that plaintiff continued to drink after the captain's hands. "Ile looked like he was taking passage on said boat and before he asleep--apparently asleep.

Q. You was injured

were watching bim? A. Yes, sir. Q. To

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