Mullaly

The plaintiff commenced this action against the defendants as sureties upon a bond to release an attachment. The action in which the attachment was taken was brought by the plaintj/f against one Kelly, and certain personal property, consisting of the furniture in a hotel, was attached. On a former trial the court granted defendants’ *484 motion for a nonsuit, the defendants admitting that the plaintiff could prove the allegations of his complaint. On appeal by plaintiff from that judgment, this court reversed the same and remanded the cause: 119 Cal. 47 , 50 Pac. 1066 . In the opinion of the court in that case it is said: “The terms of the bond required Kelly to redeliver the attached property to the sheriff upon demand. As to this demand there seems to be no question. ' It was not only alleged that, in fraud of the plaintiff’s rights, he had mortgaged the property to Hunter, but it is also alleged that an execution upon the judgment was placed in the hands of the sheriff, with instructions to levy upon said property, and that Kelly and Hunter refused to deliver it to the sheriff, otherwise than upon the payment of the $500 to Hunter. This was a refusal to deliver the property.…

I dissent from the order denying a rehearing of this cause, upon a point which is urged by appellant and argued in the briefs, but is not noticed in the opin *486 ion of the court. It is alleged in the complaint that the property attached, at the date of the attachment and when it was released, was of the value of $2,000, and was encumbered by liens to the amount of about $800. Defendants, in their answer, deny that the property was of any greater value than $1,000, and allege that it was encumbered by liens to the amount of $1,100. The issue being thus joined as to the value of the property and amount of liens to which it was subject when attached, the court found that the property at the time of the attachment and release was of the value of $1,000, and made no finding as to the amount of the liens, which, according to the allegation of the complaint, was at least $800. Notwithstanding these facts appearing by the judgment-roll, judgment was given against the defendants for $785.50, nearly $600 more than the attachable value of the property. This, to my mind, is palpable error, for which the judgment should have been reversed.