Zurich Ins. Co. v. Metropolitan Ins. Co.

Plaintiff had judgment in the court below upon an undertaking given by defendant to release an attachment, and defendant appeals. Appellant's sole point upon appeal is that the writ of attachment to release which the undertaking was given was a nullity because, it is claimed, the clerk who issued the writ did not receive an affidavit prior to the issuance of the writ of attachment as required by section 538 of the Code of Civil Procedure. [1] Appellant contends, and we think correctly, that the provision of section 538 that "the clerk of the court must issue the writ of attachment upon receiving an affidavit" is equivalent to a provision for filing the affidavit with the clerk. This construction is in accordance with the long-settled practice and comports with common sense. The original affidavit, according to the testimony, was never marked with the file stamp by the clerk or placed by him in the file of papers in the case. Instead a carbon copy of the affidavit, unexecuted, was found regularly stamped, among the papers in the clerk's office. An original affidavit was produced in court without the filing stamp of the clerk. As to this affidavit Mr. Mayo Thomas, called as a…