Hutchinson

This action is upon an undertaking executed by defendant, as surety, for the release of property that had been taken under a writ of attachment in an action brought by the plaintiff here against A. Lincoln Miller and others. The undertaking, which was given pursuant to section 540 of the Code of Civil Procedure, binds defendant to pay to plaintiff, on demand, the amount of whatever judgment the latter might obtain in the action which he had brought against Miller et al. Defendant having appeared and answered, plaintiff moved for . a judgment on the pleadings, claiming that defendant’s answer raised no material issue. The motion was granted, and defendant now appeals from the judgment. Insisting that its answer does present material issues, one in the form of a denial and another in the form of new matter, appellant contends that in granting plaintiff a judgment on the pleadings the lower court committed reversible error.

After averring that on January 24, 1921, he recovered a judgment for $2,024.90 against Miller et al. in the action wherein the defendant here had given the undertaking to release the attachment, plaintiff alleges in his complaint that on February 4, 1921,…