Mills v. Gleason

Citations

• 21 Cal. 274

Syllabus

<p>A complaint, in an action upon a statutory undertaking, which contains no other description of the instrument than an allegation that it corresponds with the provisions of a certain section of the Practice Act, is defective. The defect, however, being of form rather than of substance objection to it must be taken by demurrer to the complaint.</p> <p>The one hundred and seventy-seventh section of the Practice Act and the decisions under it, to the effect that the sureties upon the undertaking given by the plaintiff in a replevin action to procure a delivery of the property, are not responsible for a return of the property or its value unless a return was claimed in the answer and awarded by the judgment, do not apply to cases where the action is dismissed by the plaintiff before trial.</p> <p>The dismissal of a replevin action by the plaintiff before trial leaves the parties to settle in an action upon the undertaking those matters, including the right of defendant to a return of the property, which, had the original suit been prosecuted, must have been determined therein in the first instance. The opportunity to obtain a judgment for the return having been taken away by the failure to prosecute, defendant is entitled to recover, in an action on the undertaking, compensation in damages.</p> <p>Where the replevin action is dismissed before trial, the liability of the sureties on the undertaking for a return of the property is not affected by the fact, that before the dismissal an answer had been filed in which no return of the property was claimed.</p>