MILLS et al. v. GLEASON et al., 21 Cal. 274

Cope, J. delivered the opinion of the Court Court Field, C. J. and Norton, J. concurring. This is a suit upon an undertaking executed by the defendants in pursuance of

section ene hundred and two of the Practice Act. The only description of the undertaking in the complaint is, that it corresponds with the provisions of that section, and it is objected that in this respect the complaint is defective. It is claimed that the material portions of the undertaking should have been set forth, either literally or according to their legal effect; and there is no doubt that the mode of statement adopted is not sanctioned by the rules of pleading.

A reference to the statute can hardly be considered equivalent to a direct averment of the facts; but we are of opinion that the objection should have been taken by demurrer. The defect is rather of form than of substance, and in the absence of a demurrer we do not regard it as sufficient to reverse the judgment. The undertaking was executed in an action of replevin, brought by one Gould against the present plaintiffs.

A question is raised as to whether the value of the property can be recovered as damages, the counsel for the appellants insisting that the damages are to be measured by the judgment in the action of replevin.

The undertaking is conditioned “ for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to them of such sum as may for any cause be recovered against the plaintiffs.” The action was dismissed for want of prosecution, and a judgment entered in favor of the defendants for costs, and the position taken is that the amount of this judgment constitutes the measure of the relief to be administered.

There are several decisions of this Court holding that a defendant in replevin, in order to render the sureties upon the undertaking liable for' the value of the property, must demand a return in the answer, and obtain a judgment directing it. In Chambers v. Waters (7 Cal. 390) the Court said: “ In the case between Waters and Hill, if the latter intended to hold Waters and his sureties responsible upon the undertaking, either for a return of the property or its value, he should have claimed a return, and taken his judgment accordingly.

Having failed to do this, the payment of the judgment, as taken, is a complete discharge,” etc. There are other cases to the same effect; but in Gianaca v. Atwood (8 Cal. 446) where a nonsuit had been granted, it was held that

section one hundred and seventy-seven of the Practice Act, upon which the previous decisions were based, did not apply. The

section provides that “ In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if them verdict be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.” A dismissal stands upon the same footing as a nonsuit, leaving the parties to settle in an action upon v the undertaking those matters which, if the original suit were prosecuted, it would be necessary to determine in the first instance.

Such matters include, of course, the right of the defendant to a return of the property, and as the opportunity to obtain a judgment for its return is taken away by the failure to prosecute, he is entitled to compensation in damages. A failure to prosecute is a breach of the undertaking, and the legal and necessary result is that the sureties to the undertaking are liable for whatever injury the defendant has sustained. In this case it appears that a return of the property was not demanded in the replevin suit, but we think the defendants are not in a position to take advantage of this point.

The suit was not tried, but abandoned and dismissed, and under the circumstances it is immaterial what the pleadings in the case were. Judgment affirmed.