
    [No, 6,553.
    Department No. 2.]
    GOODHUE v. KING.
    Attachment — Undertaking—Bankruptcy—Jurisdiction — Surety. — In an action against the sureties in an undertaking given (under § 540 Codo Civ. Proc.) to prevent the levy of an attachment upon the property of the defendant in the attachment suit, it appeared that the latter, within four months of the issue of the attachment, filed his petition in bankruptcy, and in due course made an assignment of his property; but that, intermediate the filing of the petition and the assignment, judgment by default was entered against him. Held, that proceedings in bankruptcy did not affect the jurisdiction of the District Court, and its judgment was therefore valid, and the plaintiff entitled to recover.
    Appeal from a judgment for the plaintiff, in the Fourteenth District Court, County of Placer. Eeaedoh, J.
    The undertaking sued upon was executed by D. A. Eice, defendant in the attachment suit, and by the defendant in this suit.
    The other facts are stated in the opinion.
    
      
      B. F. Myers, for Appellant.
    The undertaking sued upon is not a forthcoming bond, but is conditioned to pay the judgment.
    
      Hale & Craig, for Respondent.
    The liability of the defendants herein was purely collateral, and the extinguishment of the original liability of Rice by the discharge in bankruptcy extinguished the liability of defendants. (Code Civ. Proc. § 540 ; Loring v. Eager, 57 Mass. 188; Carpenter v. Turrell, 100 id. 452.)
   Myrick, J.:

March 23rd, 1878, plaintiff commenced an action against one Rice, to recover $390.32, upon a promissory note, with interest and costs. On the same day an attachment was issued. March 25th, 1878, Rice and the defendants, King and Mitchell, gave a bond for the payment of any judgment which plaintiff might recover, and no ¡property was seized under the attachment. Rice made no defense to the action, and on the 1st of June, 1878, plaintiff recovered judgment against Rice for $407 and $26.99 costs.

This action is upon the bond executed by Rice and the defendants. The defendants here set up the following as a defense and bar to the action: Before the recovery of the judgment, to wit, May 4th, 1878, Rice filed his petition in bankruptcy in the United States District Court, and was by the Court adjudged a bankrupt. In due course he executed an assignment of his property, and on the 16th of November, 1878, filed his petition for discharge, which is still pending.

The Court below gave judgment for the defendants. This was error. Rice did not plead, in the suit against him, the pendency of the bankrupt proceedings. It does not appear but that the plaintiff obtained leave of the United States District Court to prosecute his suit to judgment, to the end that he might avail himself of his security. The bond was not a forthcoming bond, but was a bond to pay any judgment that plaintiff might recover. He has recovered a judgment.

The proceedings in bankruptcy did not, ipso facto, affect the jurisdiction of the Fourteenth District Court; therefore its judgment cannot be collaterally attacked.

The cases cited by respondent, 100 Mass. 452, and 59 N. Y. 233, are not in point.

Judgment reversed, and cause remanded.

Thornton, J., and ShaRpstein, J., concurred.  