Bate v. McDowell

Headnote

Attachment—deposit in lieu of undertaking.

Upon an application for an attachment the undertaking required by section "F40 of the Code of Civil Procedure must be given, and the judge has no power to accept a deposit of money in lieu thereof.

Appeal by plaintiff from order setting aside attachment issued under section 633 of the Code of Civil Procedure.

In applying for the order of attachment, in lieu of an undertaking, a sum of money was deposited. This was made one of the grounds of setting aside the attachment. On this point, Judge Freedman said, “ The attachment should be vacated, because the undertaking required to be given by section 640 was not given. Though the attachment on its face recites that the plaintiff gave the undertaking required by law, yet no undertaking of any sort was given, and hence there is nothing that can be amended. The provision that the judge, before granting the warrant, must require a written undertaking with sufficient sureties to the effect as prescribed by section 640, is mandatory, and as in the case of an attachment no provision exists, as in some other cases pursuant to which the undertaking may be dispensed with or something else accepted in lieu of it, the judge who granted the attachment had no power to accept a form of security different from that prescribed by the statute and the effect of which may give rise to dispute.”