Hathaway v. Davis

Citations

• 33 Cal. 161

Syllabus

<p>Attachment Law. — An undertaking on appeal is an express contract for the direct payment of money in the sense of the statute in relation to attachments.</p> <p>When Attachment should be Dissolved.—If the complaint states no cause of action, and does not admit of amendment, the attachment should he dissolved.</p> <p>Idem.—If the complaint can he made good hy amendment, the plaintiff should he allowed to amend, pending the motion to dissolve the attachment.</p> <p>Costs in this Court.—Costs in this Court follow the judgment unless otherwise specially directed hy the Court.</p> <p>Da3iages in this Court.—Damages for a frivolous appeal, given by the three hundred and forty-eighth section of the Practice Act, cannot he recovered in an action upon the undertaking on appeal, unless they have been specially awarded hy this Court.</p> <p>Defence to Action upon Undertaking on Appeal.— If the appeal has been considered by the appellate Court, and the judgment helow affirmed, a want of jurisdiction on the part of the appellate Court cannot he shown in defence to an action upon tho undertaking on appeal.</p> <p>Death of a Surety on Undertaking on Appeal.—If one of the sureties on an undertaking on appeal dies before suit, the respondent does not forfeit his right of action against the other sureties hy failing to present his claim against the estate of the deceased surety.</p>