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District Court of Appeal, First District, Division 2, California.


Civ. 10430.

Decided: March 05, 1937

Cooley, Crowley & Supple, of San Francisco, for appellant. Philip S. Ehrlich and Albert A. Axelrod, both of San Francisco, for respondent.

Respondent has made a motion to dismiss upon the ground that the “questions involved on this appeal have become moot and academic questions and require no further consideration.”

The showing made by respondent is that the appeal was taken from an order discharging a writ of attachment and that since the taking of the appeal, the action in which the writ of attachment was issued has been dismissed. By way of answer, appellant makes the showing that as a condition to the issuance of the writ of attachment, it was required to file an undertaking in the sum of $15,150; that one of the conditions of said undertaking was “that if the said attachment is discharged on the ground that the plaintiff was not entitled thereto, under section five hundred and thirty seven (537), Code of Civil Procedure, the Plaintiff will pay all damages which the Defendant may have sustained by reason of the attachment, not exceeding the sum specified in the undertaking.”

We are of the opinion that the motion to dismiss should be denied. The questions involved on this appeal are not mere moot and academic questions, but are questions of great practical importance to the parties. Despite the dismissal of the action in the trial court, the question of the rights and liabilities of the parties under the undertaking still remains the subject of controversy. The solution of this question depends upon the determination of whether the trial court correctly or erroneously ordered the attachment discharged. Appellant is therefore entitled to a hearing of this appeal upon the merits. Eastern Union Co. v. Moffat Tunnel Imp. Dist. (Del.Super.) 178 A. 864; Williams v. Montgomery, 148 N.Y. 519, 43 N.E. 57; Harris v. Barrett, 206 Ala. 263, 89 So. 717; Crom v. Frahm, 33 Idaho, 314, 193 P. 1013; Massengill v. City of Clovis, 33 N.M. 394, 268 P. 786; Noce v. Noce, 34 N.M. 335, 281 P. 460; F. Burkart Mfg. Co. v. Case (C.C.A.) 39 F.(2d) 5; 4 Cor.Jur. Secundum, Appeal and Error, p. 1945, § 1354.

The motion to dismiss is denied.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.

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