San Francisco Sulphur Co. v. Aetna Indemnity Co.

This is an appeal from a judgment and from an order denying a motion for a new trial in an action on an undertaking given by the defendant to discharge an attachment in an action by the plaintiff against W. P. Clark & Bro. and the Seropian Bros. Company, a corporation.

The undertaking given was the one required by section 540 of the Code of Civil Procedure, and therein the defendants in the original action, as principals, and the defendant here as surety, jointly and severally undertook that the defendants there, W. F. Clark & Bro. and the Seropian Bros. Company, would pay whatever judgment the plaintiff might recover in that action, not exceeding a sum named.

In December, 1904, plaintiff recovered judgment against W. F. Clark & Bro. in that action, and payment thereof was demanded of them, which they refused, whereupon plaintiff brought this action against the surety, the defendant here.

In November, 1904, and within four months after the issuance of the attachment, W. F. Clark & Bro. filed a petition in bankruptcy, and upon that petition an adjudication in bankruptcy was made.

A copy of the undertaking is attached to and made a part of the complaint, and according to the…