McCutcheon v. Weston

Myrick, J.

Action on an undertaking given under section 540 of the Code of Civil Procedure. The averments of the complaint and the provisions of the undertaking are similar to those in McNamara v. Hammerschlag (opinion filed January, 1884). On the authority of that case, and Preston v. Hood, 64 Cal., we hold that the points taken by the appellant relating thereto are not sustained.

The plaintiff, in pleading the recovery of the judgment in the attachment suit, avers that the plaintiff in that action “ recovered judgment against the defendant therein, H. Leslie, which was rendered in said action for the sum of,” etc., “ which judgment was entered and docketed,” etc. The plaintiff herein sued as administrator of the plaintiff in the attachment suit. In pleading his capacity he avers “that on the 20th day of July, 1880, letters of administration upon the estate of said Robert McCutcheon, deceased, were issued by the Superior Court of the said county of Alameda, to this plaintiff who duly qualified as the administrator of said estate, and entered upon the discharge of his duties as such administrator; that plaintiff is now and has been continuously ever since the said 20th day of July, 1880, the administrator of the estate of said Robert McCutcheon, deceased.”

The complaint was not demurred to by reason of any alleged defect in either of these two particulars, nor because it did not state facts sufficient to constitute a cause of action, though there Avas a demurrer on other grounds.

The appellant presents the point in this court for the first time, that the complaint is insufficient, in each of the two particulars above noted, to sustain the judgment.

We think the point not well taken. This is not an action on a judgment, but it is on an undertaking. The undertaking reads, “ if the plaintiff shall recover judgment in said action we will pay,” etc.; the allegation in the complaint is that judgment was recovered, entered, and docketed. We think this sufficient. We think the allegation as to representative capacity is sufficient to sustain a judgment, there having been no demurrer on that ground.

The point that judgment was recovered against one of the defendants only, in the attachment suit, is not Avell taken. The action was against two, and the undertaking was to pay “ if the plaintiff shall recover judgment in said action.” Why judgment was recovered against one only, we are not informed; but the court had power to render such judgment, and it was rendered in that action.

The judgment and order are affirmed.

Thornton, J., and Sharpstein, J., concurred.