Fitzgibbon v. Calvert

39 Cal. 261

• Court: California Supreme Court
• Decided: July 1, 1870
• Docket: No. 2,109
• Status: Published

Opinion

Sprague, J.,

delivered the opinion of the Court:

This is a suit upon an undertaking executed by defendants as a substitute for property ordered to be levied upon by the Sheriff by virtue of a writ of attachment in his hands, in a certain suit previously commenced in the Fifteenth District Court, by this plaintiff, against one Caleb Hyatt.

Ho material allegation of plaintiff’s complaint is denied by defendants, and the substantive matter as pleaded in the answer, even if proved as alleged, is no defense. The execution of the undertaking by defendants, and the consideration therefor—the subsequent judgment against the defendant, in the case in which the attachment was issued—the issuance of execution on said judgment against the judgment debtor in said suit, and return of said execution before the commencement of this suit, nulla bona, are substantially admitted or not sufficiently denied by the answer. The plaintiff, therefore, would have been entitled to judgment upon the pleadings, on motion. Upon the trial, however, it was admitted by plaintiff that upon an alias execution issued and returned, the sum of five dollars had been made, for which these defendants were allowed a credit on the judgment awarded against them by the Court.

We discover no error in the record, prejudicial to defendants.

Judgment affirmed.