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final, the defendant shall have the right to divert and appropriate from such stream, against such plaintiff or other parties and his successors in interest, the quantity of water therein adjudged and allowed.

[Jury trial.] Upon the filing of such answer as is herein provided for, the parties plaintiff or other parties and defendant shall be entitled to a jury trial upon the issues as to damages so raised, as provided in title seven, part three of this code, applying to actions in eminent domain.

History: Enactment approved May 19, 1917, Stats, and Amdts. 1917, p. 474. In effect July 27, 1917.

CHAPTER IV.

ATTACHMENT.

$ 540. Writ, to whom directed and what to state.
$ 554. Proceedings to release attachment, before whom taken.
$ 555. Attachment, in what cases may be released, and upon what terms.

8 537.

7. A vendor under an executory contract

for the sale of real property who retains ATTACHMENT.

the title until all payments are made is not 1. Construction of section.

entitled to have other property of the ven2-7. As to who may have.

dee attached in an action to recover overdue 8. Laches.

and unpaid payments.-Richvale Land Co. Construction of section. The limita- v. Johnson, 28 Cal. App. 296, 152 Pac. 312. tion of the right of attachment to actions

8. Laches.The fact that an attaching upon unsecured contracts applies only

creditor does not assert his rights for two where the defendants reside in this state.-

years after the levy does not necessarily Title Ins. & Trust Co. v. California Devel. bar his remedy on the ground of laches.Co., 171 Cal. 173, 152 Pac. 542.

Title Ins. & Trust Co. V. California Devel. 2. As to who may have.-An attachment Co., 171 Cal. 174, 152 Pac. 542. against a corporation by creditor who is a director thereof is not for that reason

8538. alone invalid.Title Ins. & Trust Co. v. AFFIDAVIT TO PROCURE ATTACHMENT. California Devel. Co., 171 Cal. 173, 152 Pac.

1. Construction of section Subdivision 1. 542.

2. -Subdivision 4. 3. A creditor may levy an attachment

3-5. The affidavit. upon property of his debtor, though he knows his debtor to be insolvent and though 1. Construction of section-Subdivision 1. he levies the attachment for the purpose -Although section 813 establishes a lien for of securing a preference over other cred- work done or material furnished for the itors.- Title Ins. & Trust Co. v. California construction, repair, or equipment of a Devel. Co., 171 Cal. 173, 152 Pac. 542.

steamer or vessel or boat, there is nothing 4. A creditor is not precluded from levy- to prevent a mechanic or laborer or maing an attachment by his knowledge of the terialman from having an attachment under fact that the debtor is insolvent, nor is the general law. The lien contemplated by the validity of the attachment affected by this subdivision is not such a one as is his intention to secure a preference for the contemplated by the special law for the debt.-Title Ins. & Trust Co. v. California enforcement of liens as laid down in secDevel. Co., 171 Cal. 173, 152 Pac. 542.

tions 813 et seq. of this code. A plaintiff 5. An action to recover in the form of is not barred from availing himself of the damages for breach of a contract of em- general law relating to attachments on the ployment, the commissions, at a specified assumption that the debt was "secured by percentage, which the plaintiffs would have mortgage or lien upon real or personal earned had the contract not been broken, property, or pledge of personal property."is an action in which a writ of attachment Graham v. Annis, 28 Cal. App. 754, 153 Pac. will issue.—Hamburger v. Halpern, 28 Cal. 981. App. 317, 152 Pac. 61.

2. -Subdivision 4.-An affidavit for an 6. Where under a contract of sale the attachment which states "that the said vendor retains the title to the property attachment is not sought

to hinder, until all payments are made he is not delay or defraud any creditor or creditors entitled to an attachment in an action to of the said defendant" does not meet the recover an unpaid balance because he has requirements of section 538 of the Code of security for the purchase price.-Richvale Civil Procedure, where there are three deLand Co. v. Johnson, 28 Cal. App. 296, 152 fendants, and if not amended upon motion Pac. 312.

of the plaintiff at or before the hearing of 2. Duty of sherif.--The sheriff had no This section manifestly means that the discretion but to obey the writ commanding plaintiff can not have the property attached

the application to discharge the writ, the application should be granted.—Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

3. The affidavit -The fraud which will destroy the right of attachment must be something in the nature of a want of merit in the claim, or of collusion between the attaching creditor and his debtor. — Title Ins. & Trust Co. v. California Devel, Co., 171 Cal. 174, 152 Pac. 542.

4. The fact that an affidavit for attachment is false in alleging that the attachment is not sought nor the action instituted for the purpose of defrauding or delaying creditors, does not necessarily invalidate the attachment.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

5. An affidavit of an attachment, defective in a substantive particular in that it refers only to one defendant when there are three, may be amended upon motion of the plaintiff at or before the hearing of the application to discharge the writ.-Peterson v. Beggs, 26 Cal. App. 760, 148 Pac. 541.

$ 539.

1. Undertaking on attachment-Release of sureties. — Sureties on an undertaking given to release an attachment are not released by a stipulation of the parties to the action made in open court that the judgment rendered in the action should be final.—Meyer v. Jones, 32 Cal. App. 378, 163 Pac. 67.

$ 540. WRIT, TO WHOM DIRECTED AND WHAT TO STATE. The writ must be directed to the sheriff of any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand against such defendant, the amount of which must be stated in conformity with the complaint, unless such defendant give him security by the undertaking of at least two sufficient sureties in an amount sufficient to satisfy such demand against such defendant, besides costs, or in an amount equal to the value of the property of such defendant which has been or is about to be attached; in which case to take such undertaking.

[If more than one defendant.] In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the sheriff such undertaking, and the sheriff shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the sheriff thereby be prevented from attaching or be obliged to release from attachment, any property of any other defendant; provided, however, that such defendant, at the time of giving such undertaking to the sheriff, shall file with the sheriff, a statement, duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant's title and the manner in which he acquired title to such attached property; provided, further, that before said attachment shall be released, the undertaking required by this section must be approved by the judge of the court issuing same or if said writ of attachment is from another county, then by a judge of a court of similar jurisdiction in the county where the levy shall have been made.

Several writs may be issued at the same time to the sheriffs of different counties.

History:

Enacted March 11, 1872, a re-enactment of $ 123 of Practice Act, as amended in 1860; amendment approved May 26, 1917,

Stats. and Amdts. 1917, p. 938. In effect July 27, 1917. 1. Writ of attachment-Construction.

him to "attach and safely keep all the if the required security is given by a bond

property." It is his duty to preserve such to prevent the attachment. But the sec

property at his peril.–Callahan v. Danziger,

172 Cal. 738, 158 Pac. 760. tion requires that the bond must be given

3. In keeping property under process, by the one whose property is about to be

the same prudence and economy should be attached. Its demand is that "such defen

exercised as in the ordinary business affairs dant" give the security.-Thayer v. Braden, of life. No unnecessary

expense should 27 Cal. App. 435, 150 Pac. 653.

be incurred therein.-Callahan v. Danziger,

172 Cal. 738, 158 Pac. 760.

to

$ 542.

8 547. 1. Attachment of personalty-What is.

1. Attachment-Perishable property, what The frame house, derrick and rigs of an is.—The “perishable property" which a sheroil developing corporation are not a part iff holds under attachment and which he of the realty requiring, in case of attach- may sell under section 547 of the Code of ment, that the method provided for the Civil Procedure without an order of court, attachment of real property be pursued, is that which because of its nature or where such equipment is capable of being inherent qualities is liable to material dedismantled and carted away.--Callahan v. preciation in value from decay or other Danziger, 172 Cal. 738, 158 Pac. 760.

causes pending the termination of the liti

gation, and does not include property which 8 544.

is lessened in value and has become worse GARNISHMENT.

by being kept.-Callahan v. Danziger, 172 1. Construction of section.

Cal. 738, 158 Pac. 760. 2, 3. Liability of garnishee.

2. Lumber blown down from oil rigs, 4. What may be garnisheed.

timbers, tanks, irons, shovels, picks, stoves 5, 6. Who may be garnisheed.

and cooking utensils, bedding and various 1. Construction of section.

implements used in connection with the

The garnishee process, in this state, is intended as

business of mining and drilling for oil, are not

V. a substitute for a creditor's bill. In such

“perishable" property. — Callahan a bill it was necessary for the plaintiff to

Danziger, 172 Cal. 738, 158 Pac. 760. allege the securing of a judgment against

3. Selling without order of court.-The the principal debtor, the issuance of an

sheriff may be compelled by proper process execution and its return unsatisfied.-Mar

sell perishable property, even where shall v. Wentz, 28 Cal. App. 540, 153 Pac.

there is no order from the court or judge. 244.

-Henry Cowell Lime & Cement Co. v. Figel, 2. Liability of garnishee.-The liability

27 Cal. App. 11, 148 Pac. 796. of the garnishee is fixed by the service

4. While the sheriff may sell without an upon him and as of the date of the service

order of the court or judge the perishable and continues until one of two things hap- property, yet the correct practice is for the pens: 1. The discharge of the attachment; parties to proceed under section 548. or, 2. The satisfaction of the judgment.- Henry Cowell Lime & Cement Co. v. Figel, Marshall v. Wentz, 28 Cal. App. 540, 153 27 Cal. App. 11, 148 Pac. 796. Pac. 244. 3. A garnishee's liability in the case of a

8 548. debt due from him is grounded upon and 1. Attachment - - Order directing sale.is limited by his liability to the defendant Where the defendants desire to have atin the principal action whereby the latter tached property sold before the termination has at the time of the garnishment a cause of the action, they should apply for an of action, present or future, against him.- order directing its sale.—Callahan v. DanAmerican Exchange Nat. Bank v. Superior ziger, 172 Cal. 738, 158 Pac. 760. Court, 29. Cal. App. 8, 154 Pac. 279.

2. If it had been made to appear satis4. What may be garnisheed. -The lia

factorily to the court that the interest of bility of a stockholder of a corporation on

the parties would have been subserved by a an assessment is a debt subject to gar

sale thereof, it would have been its duty nishment, it being a liability arising from

to make such an order without regard to contract.-Marshall v. Wentz, 28 Cal. App.

the question whether or not the property 540, 153 Pac. 244.

was perishable.-Callahan v. Danziger, 172 3. Who may be garnisheed.-A judgment

Cal. 738, 158 Pac. 760. creditor may bring an action against a garnishee upon whom notice was served under

3. The decision of the trial court upon an attachment issued in the action before

the question of propriety of ordering a sale judgment, without first availing himself of

is final and conclusive, for no appeal has proceedings supplementary to execution.

been provided for therefrom.-Henry CowMarshall v. Wentz, 28 Cal. App. 540, 153 Pac.

ell Lime & Cement Co. v. Figel, 27 Cal. App. 244.

11, 148 Pac. 796. 6. After the delivery of a check, the 4. Although section 547 makes it the drawer can not be garnisheed as debtor duty of the sheriff, without an order from of the payee in respect to the debt for the court or judge, to sell perishable propwhich the check is given.-American Ex- erty, and the officer could be compelled by change Nat. Bank v. Superior Court, 29 Cal. proper process to perform it, yet it is App. 8, 154 Pac. 279.

doubtless the correct practice for the parties to proceed under this section where

the property is of a perishable nature, and 1. Citation of garnishee. — A judgment upon such showing be entitled to an order debtor is not party to a garnishment pro- directing its sale since obviously the sale ceeding to condemn a claim due him from of property of that character would cera third person, and is not bound by a judg- tainly be to subserve the interests of the ment discharging the garnishee.-New York parties to the action.-Henry Cowell Lime Life Ins. Co. v. Dunlevy, 241 U. S. 518, & Cement Co. v. Figel, 27 Cal. App. 11, 148 60 L. Ed. 1140, 36 Sup. Ct. Rep. 613.

Pac. 796.

8 545.

8 552.

1. Suit on undertaking-Construction.Under section 552 of the Code of Civil Procedure, providing that if an execution be returned unsatisfied in whole or in part, the plaintiff may prosecute any undertaking

given pursuant to sections 554 and 555 of the same code, for the release of an attachment, the issuance and return of an execution are a condition precedent to the right to commence an action upon the undertaking.–Curtin V. Katchinski, 31 Cal. App. 768, 161 Pac. 764.

$ 554. PROCEEDINGS TO RELEASE ATTACHMENT, BEFORE WHOM TAKEN. Whenever any defendant has appeared in the action, such defendant may upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to the judge thereof, for an order to discharge the attachment wholly, or in part; and upon the execution of the undertaking mentioned in the next section, an order may be made releasing from the operation of the attachment, any or all of the property of such defendant attached; and all of the property so released and all of the proceeds of the sales thereof, must be delivered to such defendant upon the justification of the sureties on the undertaking, if required by the plaintiff. Such justification must take place within five days after the notice of the filing of such undertaking.

History: Enacted March 11, 1872, founded upon $ 136 of Practice
Act, as amended in 1854; amended March 9, 1880, Code Amdts. 1880
(C. C. P. pt.), p. 4; by Code Commission, Act March 8, 1901, Stats, and
Amdts. 1900-1, p. 141; Act held unconstitutional, see History, Kerr's
Cyc. C. C., § 4; amended March 20, 1907, Stats. and Amdts. 1907, p. 708,
Kerr's Stats. and Amdts. 1906-7, p. 444; May 26, 1917, Stats. and

Amdts. 1917, p. 939. In effect July 27, 1917. 1. Release of attachment. Where the or apply to the court for an order for its owner of the property attached desires to sale.-Callahan v. Danziger, 172 Cal. 738, 158 avoid the expense of keepers' fees, he should Pac. 760. have the attachment released under bond,

8 555. ATTACHMENT, IN WHAT CASES MAY BE RELEASED, AND UPON WHAT TERMS. Before making such order, the court or judge must require an undertaking on behalf of such defendant, by at least two sureties, residents and freeholders or householders in the state to the effect that in case the plaintiff recovers judgment in the action against the defendant, by whom, or in whose behalf such undertaking shall be given, such defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of any judg. ment in such action against said defendant, or in default thereof, that such defendant and sureties will, on demand, pay to the plaintiff the full value of the property released not exceeding the amount of such judgment against such defendant. The court or judge making such order may fix the sum for which the undertaking must be executed, and if necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court or judge and the property attached can not be released from the attachment without their justification if the same is required.

History: Enacted March 11, 1872, founded upon $ 137 Practice Act, as amended in 1854; amended March 24, 1874, Code Amdts. 1873-4, p. 308; by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 141; Act held unconstitutional, see History, Kerr's C. C., $ 4; amended March 20, 1907, Stats, and Amdts. 1907, p. 709, Kerr's Stats. and Amdts. 1906-7, p. 444; May 26, 1917, Stats. and Amdts. 1917,

p. 939. In effect July 27, 1917. 1. Release of attachment-Action on un- unnecessary, and therefore excused, by readertaking.-In an action on an undertaking son of the fact that the judgment debtors to release property attached, the issuance had gone into bankruptcy and had never and return of an execution are not rendered obtained their discharge, as the national

[blocks in formation]

1. Motion to discharge attachment-Notice must specify grounds.-A notice to discharge a writ of attachment "because the said writ was improperly issued” is insufficient in that it fails to specify the particular grounds therefor.-Garrett v. Garrett, 31 Cal. App. 173, 159 Pac. 1050.

-Irregularities walved by defendant.-A subsequent lienholder can not assail an attachment for defects in procedure with regard to matters that are personal to the debtor, such as the failure to give a bond, or omissions in the affidavit required by statute. In other words, where there is a bona fide claim, mere irregularities in the levy of the attachment not objected to by the defendant can not be taken advantage of by subsequent lien claimants. But this rule does not apply where the attachment lien itself is assailed for actual fraud in its creation, operating directly upon the rights of the party complaining. Such is the nature of the attack here made by the salt company.--Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

8 558. ATTACHMENT-WHEN WRIT MUST BE

DISCHARGED. 1. Construction of section. 2, 3. Amending defective affidavit, effect of.

4. When defective affidavit not amended.

1. Construction of section.-Inasmuch as an affidavit may be made by or on behalf of the plaintiff under section 538 "we see no reason why an amended affidavit also may not be made on behalf of the plaintiff." -Nichols v. Davis, 168 Cal. 570, 143 Pac. 758.

2. Amending defective affdavit, effect of. -Where the affidavit was defective in failing to state that the defendant was a nonresident but was remedied by amendment under this section, it was error to dissolve the attachment in so far as the grounds were based upon the original defective affidavit.-Hamburger v. Halperm, 28 Cal. App. 317, 152 Pac. 61.

3. A defect in the affidavit of justification of sureties is amendable, and when corrected it has the effect of validating the attachment from the beginning.-Bone Trafton, 31 Cal. App. 30, 159 Pac. 819.

Where defective affidavit not amended. - Where an affidavit lacks only a substantive particular and is amendable, but no such amendment was suggested, the attachment must be discharged.-Peterson Beggs, 26 Cal. App. 760, 148 Pac. 541.

V.

CHAPTER V.

RECEIVERS.

$ 570. Disposition of unclaimed funds in hands of receiver.

re

8 564.

were insufficient to authorize the appoint

ment of the receiver, although such objection 1. Appointment of receiver.-In an action

would have been good if not waived.-Title to foreclose a deed of trust securing bonds,

Ins. & Trust Co. v. California Devel. Co., 171 a holder of bonds who does not appear in

Cal. 174, 152 Pac. 564. the proceeding individually is bound by

4. the bona fide acts of the plaintiff, as trustee

In the event that the interested parties for the holders of the bonds, in making an

can not agree as to whom payments made application for the appointment of a

from time to time under the contracts of ceiver; when, however, he does so appear,

sale shall be made, the court may, in aid he is entitled to stand upon his own rights

of the final judgment in partition, appoint and to take such action as he sees fit for

a receiver for that purpose under the prothe protection thereof.-Title Ins. & Trust

visions of section 564 of the Code of Civil Co. v. California Devel. Co., 171 Cal. 174,

Procedure.-Rich v. Smith, 26 Cal. App. 775, 152 Pac. 564.

148 Pac. 545. 2. It is the duty of such a bondholder, 5. In the absence of an affirmative showhowever, to make timely objection to the ing that the court abused its authority in appointment of the receiver, and failure to appointing the receiver the due regularity make such objection is a waiver of such of the court's action in that regard will right.-Title Ins. & Trust Co. v. California be presumed. In other words, where there Devel. Co., 171 Cal. 174, 152 Pac. 564.

is no bill of exceptions or other record 3. Such a bondholder is not entitled upon showing on what evidence the court based appeal to present points of attack which he its order the presumption will be indulged did not present in the court below, and that the court had before it facts sufficient where his motion to discharge the receiver to justify the order notwithstanding that is founded on the sole ground that the un- the facts disclosed by the complaint might dertakings were insufficient, he can not, after not in themselves, taken alone be enough to final decree, raise in the appellate court for warrant the appointment under this secthe first time the objection that the com- tion.-Ulm v. Prather, 29 Cal. App. 92, 154 plaint and the affidavit accompanying it Pac. 611.

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