Palmer v. Melvin
California Supreme Court
Appeal from the Superior Court of the City of San Francisco. This was an action on an undertaking given to release property from attachment. The complaint alleges the execution and delivery of the undertaking by the defendants in a certain action, and has annexed a copy of the undertaking, in which the “ relief from attachment ” is stated as a consideration of the bond.
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Appeal from the Superior Court of the City of San Francisco. This was an action on an undertaking given to release property from attachment. The complaint alleges the execution and delivery of the undertaking by the defendants in a certain action, and has annexed a copy of the undertaking, in which the “ relief from attachment ” is stated as a consideration of the bond. The complaint alleges final judgment for plaintiff in the attachment suit, but does not aver that the goods attached were released on the execution and delivery of the bond. The defendants demurred to the complaint on the…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Chief Justice Murray.
Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
The demurrer to the plaintiff’s complaint was well taken, and should have been sustained.
The complaint does not state that the property attached was released upon the execution and delivery of the bond. To charge the defendants, it is necessary to allege the consideration of the undertaking, and a mere reference to the condition of the bond, is insufficient.
Judgment reversed, and cause remanded.
2Cited by3 opinions
- Coburn v. PearsonCalifornia Supreme Court · 1881
- Jenner v. StrohCalifornia Supreme Court · 1877
- Williamson v. BlattanCalifornia Supreme Court · 1858