La Dow v. National BuildIng & Paying Brick Co.

Defendant appeals from an order of court denying its motion to vacate and set aside a writ of attachment.

Prior to the issuance of the writ plaintiff filed with the clerk an undertaking in due form, as required by the provisions of section 539, Code of Civil Procedure. Within the time provided therefor defendant excepted to the sufficiency of the sureties upon the undertaking, notice of which was duly served upon plaintiff. At the time fixed for the justi fieation of the sureties only one of them appeared and justified. The further hearing was thereupon continued to a subsequent day, when, the other surety not appearing, plaintiff presented and offered to file an undertaking executed by the United States Fidelity & Guaranty Company. Defendant did not question the sufficiency of said guaranty company as a surety, but objected to the filing of the undertaking upon the sole ground that it was contrary to law, and that defendant would not be able to collect thereon for costs and damages sustained prior to the date of filing the same, which objection the court overruled. The new undertaking was thereupon received and filed. Thereafter, defendant moved the court to vacate and discharge…