O. J. PRESTON et al., Respondents, v. WILLIAM HOOD et al., Appellants, 64 Cal. 405

Myrick, J. —This is an action on an undertaking given under

section 540 of the Code of Civil Procedure, the defendants being the sureties. Two questions are presented for consideration. First. The complaint avers the issuance of the attachment, and that the sheriff proceeded to execute the writ, and that the defendant in the action, to prevent the levy, gave the undertaking herein sued on; that upon the delivery of the undertaking the sheriff released the property attached, and returned the writ and undertaking.

The undertaking recites the issuance of the writ, whereby the sheriff was commanded to attach and safely keep the property of the defendant therein named, unless he give security by undertaking in an amount sufficient to satisfy the demand, and states that, “whereas the said defendant is desirous of giving the undertaking mentioned in the said writ, now, therefore,” etc., “in consideration of the premises,.and to prevent the levy of said attachment,” etc.

The court found that the sheriff, upon receiving the writ, proceeded to execute it, and levied upon some property belonging to the defendant named therein, and that upon the giving of the undertaking the sheriff did not attach any further property, and released what property he had levied upon, and returned the writ with the undertaking. The defendants herein contend that their undertaking was to prevent a levy, not for the release of a levy, and that as property of sufficient value to pay the demand had been seized before the giving of the undertaking, there is no liability on their part.

There are in the Code of Civil Procedure two distinct provisions for undertakings in attachment proceedings: First, that in

section 540, by Avhich the undertaking is delivered to the sheriff, and the parties deal directly Avith him; and second, that in

section 554, Avhere the court is to order the discharge, after the defendant has appeared. This case is under

section 540. The undertaking refers to a Avrit authorized by that section, and recites “Whereas the defendant is desirous of giving the undertaking mentioned in said Avrit,” and the

section distinctly states that the AAuit must require the sheriff [which the Avrit in this case did] to attach and safely keep the property of the defendant, unless an undertaking be given in an amount sufficient to satisfy the demand, or in an amount equal to the value of the property Avhich has been or is about to be attached, in which case to take the undertaking. Here is a distinct recognition of the fact that the sheriff may haATe commenced the execution of the writ, aucl may have attached some property, before the delivery of the undertaking. (Curiac v.

Packard, 29 Cal. 199, per Sawyer, J.), and he is required to take the undertaking, and proceed no further. In the absence'of an undertaking he is commanded not only to attach, but to safely keep ; the giving of the undertaking not only prevents him from making any further levy, but it prevents him from keeping any property already attached, and releases any levy already made, and substitutes the security of the undertaking in the place of property which has been or is about to be attached. Second.

The plaintiffs offered in evidence the judgment roll in the attachment suit, showing the rendition of judgment in their favor. Ho extension of time appeared in the roll.

The defendants offered in evidence the minutes of the court, stating that the cause came on regularly for trial, the attorneys for the respective parties being present, and that by consent of counsel in open court, judgment Avas directed to be entered in favor of plaintiffs and against defendants; then folloAved the sentence: “By consent of respective counsel, it is ordered that proceedings on execution be stayed for sixty days.” The plaintiffs objected to the evidence on the ground that the judgment, as appearing in the roll, could not be changed or modified by the evidence offered.

The minutes did not change or modify the judgment; it AAras competent for the defendants to prove, if they could, an agreement betAveen the parties to that suit for an extension of time; and the evidence AAras offered for that purpose. The defendants in this action claim that such extension, being Avithout their consent, released them from liability on the undertaking, they being sureties merely. That they are sureties, and not original obligors, is amply sustained, as Avell by

section 540 of the Code of Civil Procedure, as by the opinion of this court in Curiac v. Packard, 29 Cal. 197. There is no doubt as to the general position, that if the obligee make a valid contract Avith the obligor, for a consideration, to extend the time for payment, such contract will discharge the sureties if made without their consent. The question is: Does this case come within 4the general proposition ?

Forbearance Avill not discharge the surety, nor will a direction to the sheriff to return an execution without levy; but if a seizure of personal property lias been had, a direction to release the property seized will operate as a discharge pro tanto. In Hulme v.

Coles, 2 Sim. 13, an action was commenced in June, on a bond, and on the 23d of that month, without the privity of the surety, the obligee took from the obligor a cognovit for the amount of the debt, with a stipulation that no judgment should be entered up or execution issued until the 1st of August following; held, by the arrangement complained of, time was not given, but the remedy was accelerated. So, in Fletcher v.

Gamble, 3 Ala. 335, it was held that a confession of judgment by the principal debtor, and stay of execution by the creditor until the next term of court, was not such a giving day of payment as would exonerate the surety; the delays which the debtor may have by operation of law, even if by arrangement between the parties, is not giving time. (See also Suydam v. Vance, 2 McLean, 99, to the same effect.) In Barker v.

McClure, 2 Blackf. 14, it was held that the single fact of taking a judgment by confession, with stay of execution for six months, was not sufficient to discharge the surety, in the absence of proof that with the judgment by confession and stay, the money could not have been collected as speedily as by the usual course of proceedings. In the case before us, the judgment was by consent. By consenting to the judgment, the defendant practically waived any ground he might otherwise have had for motion for new trial and of appeal.

We cannot say nor did the defendants in this case attempt or offer to prove, that without the consent for the judgment it could or would have become final and conclusive (in the sense of not being reviewable) before the expiration of sixty days. It may have been, that when this case was called for trial, the plaintiffs were not ready, in consequence whereof a continuance might have been granted to a day beyond the sixty days, the time depending upon other business before the court, and the plaintiffs rather than have such delay were willing to grant the time named, taking their judgment then.

We have not noticed all the points presented; but the above is practically a disposition of them. Judgment and order affirmed.