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District Court of Appeal, Second District, Division 1, California.

L. J. LE FAVE; National Tapered Wing Company, a corporation; and Mercury Engineering Company, a corporation, Plaintiffs and Appellants, v. James H. DIMOND and Indemnity Insurance Company of North America, a corporation, Defendants and Respondents.*

Civ. 20481.

Decided: October 24, 1955

Buchalter, Nemer & Fields, Los Angeles, Murray M. Fields, Los Angeles, of counsel, for appellants. Gitelson, Ashton, Moore & Coyle, Los Angeles, Alfred Gitelson, Leon M. Cooper, Los Angeles, of counsel, for respondents.

When this case was called for trial objection to the introduction of evidence eas sustained, and the cause was submitted for decision on plaintiffs' first amended complaint, with judgment for defendants. Plaintiffs appeal from the judgment.

The complaint was for $5,000 attorneys fees alleged to be due under an undertaking in a claim and delivery action.

The judgment was proper for three reasons, each one sufficient in itself to require this Court to affirm it.

1. The property that was subject to the action in claim and delivery, and concerning which the bond was given, was never taken from defendants. It is well settled that where one gives to an officer a proper undertaking, but the officer takes no property into his possession, no right of action accrues on the undertaking. Lamb v. National Surety Co., 108 Cal.App. 297, 301, 291 P. 647.

2. Attorneys' fees were not awarded in the claim and delivery action. Therefore, the judgment in that action is res adjudicata of the cause of action alleged in this case. A principal and surety in a claim and delivery action are liable only for such sums as may be recovered in that action. A final judgment on the merits between parties who in law are the same operates as a bar to a subsequent action upon the same cause of action, settling not only every issue that was raised, but also every issue that might have been raised in the first action. Olwell v. Hopkins, 28 Cal.2d 147, 152, 168 P.2d 972.

3. Attorneys' fees for the prevailing party in an action of claim and delivery are not recoverable in any event. Section 1021, Code of Civil Procedure; Hays v. Windsor, 130 Cal. 230, 62 P. 395; Harris v. Smith, 132 Cal. 316, 64 P. 409; Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869; W. R. Bradshaw & Co. v. Eggers, 27 Cal.App. 132, 148 P. 961.

The judgment is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.