21 Cal. 274, Mills v. Gleason

Citation:21 Cal. 274
Opinion Judge:COPE, Judge
Party Name:MILLS et al. v. GLEASON et al.
Attorney:F. A. Fabens, for Appellants. John Reynolds, for Respondents.
Judge Panel:JUDGES: Cope, J., delivered the opinion of the Court. Field, C. J., and Norton, J., concurring.
Case Date:October 01, 1862
Court:Supreme Court of California

Page 274

21 Cal. 274

MILLS et al.


GLEASON et al.

Supreme Court of California

October, 1862

Page 275

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Appeal from the Fourth Judicial District.

On the eighteenth day of April, 1856, one Gould commenced an action, in the Superior Court of San Francisco, against the present plaintiffs to recover certain personal property, and in pursuance of the provisions of the statute for procuring an immediate delivery of the property made the proper affidavit and delivered to the officer an undertaking, executed by the present defendants, in the sum of five hundred dollars conditioned as required in the one hundred and second section of the Practice Act. The property was thereupon taken by the officer from the possession of the present plaintiffs and delivered to Gould. The defendants in the replevin suit (plaintiffs here) filed an answer therein in which they did not claim any return of the property to them. When the case came on for trial Gould the plaintiff failed to appear, and a judgment was entered dismissing the action for want of prosecution and in favor of defendants for their costs.

The present action is brought upon the undertaking executed by the sureties in the replevin suit. The complaint sets up the proceedings in that suit and claims a recovery for the value of the property, (which it avers has never been returned) with interest thereon, and also for the costs which were adjudged them in the replevin suit. The complaint does not contain a copy of the undertaking or any averments as to what it contained, except that it was made in pursuance of the one hundred and second section of the Practice Act, was in the penal sum of five hundred dollars, and was conditioned as required by that section. Defendants, without demurring, answered, and a trial was had before the Court without a jury. The Court found the facts substantially as above set forth, and that the value of the property at the time of the taking was three hundred dollars, and gave judgment for plaintiff for this amount and the amount of the judgment for costs in the replevin suit with interest. Defendants moved for a new trial which was denied, and from this order and the judgment they now appeal.


F. A. Fabens, for Appellants.

I. The complaint does not state facts sufficient to constitute a cause of action.

1. There is no sufficient allegation as to the undertaking sued upon. The undertaking is not set forth in hoec verba, neither is the tenor of it described. 2. There is no allegation in the complaint that the plaintiffs have suffered any damage by reason of Gould's failing to prosecute his replevin suit described in the complaint. The complaint shows that there were no damages found in the replevin suit against Gould for the taking alleged. Damages for the original taking and detention should have been found in the replevin suit; not having been so found they cannot be recovered of the sureties. (Gianaca v. Atwood , 8 Cal. 446.) 3. It does not appear from the complaint that the property claimed in the replevin suit has not been returned to the plaintiffs.

II. In an action against the sureties upon an undertaking in a replevin suit, the judgment in the replevin suit is the only measure of damages. (Chambers v. Waters , 7 Cal. 398; Gould v. Scannel , 13 Id...

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