Elder v. Kutner

Citations

• 97 Cal. 490
• 32 P. 563
• 1893 Cal. LEXIS 576

Syllabus

<p>Attachment — Undertaking — Action against Sureties — Measure of Damages. — An action upon an undertaking upon attachment is an action upon contract, and the measure of damages, in an action against the sureties, is the amount which will compensate for the detriment proximately caused to the party aggrieved, or the proximate consequences naturally and ordinarily resulting from the effect of the writ.</p> <p>Id. — Liability of Sureties. — The liability of sureties is limited by the terms and conditions of their contract, and cannot be extended by implication beyond its terms.</p> <p>Id.-—Impairment of Credit of Attachment Debtor —Pleading—• Motion to Strike out. — The impairment of the credit of an attachment debtor whose real property has been attached, and his inability to sell or mortgage the land levied upon, are not the proximate consequence of the attachment, and the sureties upon the attachment bond are not liable in damages therefor. A motion to strike such matter from the complaint, in an action upon the attachment bond, should be granted.</p> <p>Id. —Malicious Attachment.—In an action against the sureties on an attachment bond, the questions of motive and probable cause for the attachment are immaterial, and the fact that the attachment was malicious does not affect their liability.</p> <p>Id.—Attorney’s Fees in Defending Attachment — Payment—Pleading— Incurring of Liability not Sufficient. —In an action against the sureties on an attachment bond, counsel fees for defending the attachment suit cannot be recovered, in the absence of an allegation that they have been actually paid. An allegation that the plaintiff “engaged an attorney to represent him therein, and inenrred attorney’s fees ” in the amount sought to be recovered, is not sufficient.</p>