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. § 537. 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. ATTACHMENT. 1. Construction of section. 2-7. As to who may have. 8. Laches. 1. Construction of section. The limitation of the right of attachment to actions upon unsecured contracts applies only where the defendants reside in this state.Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542. 2. As to who may have.-An attachment against a corporation by creditor who is a director thereof is not for that reason alone invalid.-Title Ins. & Trust Co. V. California Devel. Co., 171 Cal. 173, 152 Pac. 542. 3. A creditor may levy an attachment upon property of his debtor, though he knows his debtor to be insolvent and though he levies the attachment for the purpose of securing a preference over other creditors. Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542. 4. A creditor is not precluded from levying an attachment by his knowledge of the fact that the debtor is insolvent, nor is the validity of the attachment affected by his intention to secure a preference for the debt.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542. 5. An action to recover in the form of damages for breach of a contract of employment, the commissions, at a specified percentage, which the plaintiffs would have earned had the contract not been broken, is an action in which a writ of attachment will issue.-Hamburger v. Halpern, 28 Cal. App. 317, 152 Pac. 61. 6. Where under a contract of sale the vendor retains the title to the property until all payments are made he is not entitled to an attachment in an action to recover an unpaid balance because he has security for the purchase price.-Richvale Land Co. v. Johnson, 28 Cal. App. 296, 152 Pac. 312. 7. A vendor under an executory contract for the sale of real property who retains the title until all payments are made is not entitled to have other property of the vendee attached in an action to recover overdue and unpaid payments.-Richvale Land Co. v. Johnson, 28 Cal. App. 296, 152 Pac. 312. 8. Laches.-The fact that an attaching creditor does not assert his rights for two years after the levy does not necessarily bar his remedy on the ground of laches.Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542. § 538. AFFIDAVIT TO PROCURE ATTACHMENT. 1. Construction of section-Subdivision 1. 2. Subdivision 4. 3-5. The affidavit. 1. Construction of section-Subdivision 1. -Although section 813 establishes a lien for work done or material furnished for the construction, repair, or equipment of a steamer or vessel or boat, there is nothing to prevent a mechanic or laborer or materialman from having an attachment under the general law. The lien contemplated by this subdivision is not such a one as is contemplated by the special law for the enforcement of liens as laid down in sections 813 et seq. of this code. A plaintiff is not barred from availing himself of the general law relating to attachments on the assumption that the debt was "secured by mortgage or lien upon real or personal property, or pledge of personal property."— Graham v. Annis, 28 Cal. App. 754, 153 Pac. 981. 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 Prac tice 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. This section manifestly means that the plaintiff can not have the property attached if the required security is given by a bond to prevent the attachment. But the section requires that the bond must be given by the one whose property is about to be attached. Its demand is that "such defendant" give the security.-Thayer v. Braden, 27 Cal. App. 435, 150 Pac. 653. 2. Duty of sheriff.-The sheriff had no discretion but to obey the writ commanding him to "attach and safely keep all the property." It is his duty to preserve such property at his peril.-Callahan v. Danziger, 172 Cal. 738, 158 Pac.. 760. 3. In keeping property under process, the same prudence and economy should be exercised as in the ordinary business affairs of life. No unnecessary expense should be incurred therein.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. § 542. 1. Attachment of personalty-What is.— The frame house, derrick and rigs of an oil developing corporation are not a part of the realty requiring, in case of attachment, that the method provided for the attachment of real property be pursued, where such equipment is capable of being dismantled and carted away.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. § 544. GARNISHMENT. 1. Construction of section. 2, 3. Liability of garnishee. 4. What may be garnisheed. 5, 6. Who may be garnisheed. 1. Construction of section. The garnishee process, in this state, is intended as a substitute for a creditor's bill. In such a bill it was necessary for the plaintiff to allege the securing of a judgment against the principal debtor, the issuance of an execution and its return unsatisfied.-Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244. 2. Liability of garnishee.-The liability of the garnishee is fixed by the service upon him and as of the date of the service and continues until one of two things happens: § 547. 1. Attachment-Perishable property, what is.-The "perishable property" which a sheriff holds under attachment and which he may sell under section 547 of the Code of Civil Procedure without an order of court, is that which because of its nature or inherent qualities is liable to material depreciation in value from decay or other causes pending the termination of the litigation, and does not include property which is lessened in value and has become worse by being kept.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. 2. Lumber blown down from oil rigs, timbers, tanks, irons, shovels, picks, stoves and cooking utensils, bedding and various implements used in connection with the business of mining and drilling for oil, are not "perishable" property. Callahan Danziger, 172 Cal. 738, 158 Pac. 760. 3. V. Selling without order of court.-The sheriff may be compelled by proper process to sell perishable property, even where there is no order from the court or judge. -Henry Cowell Lime & Cement Co. v. Figel, 27 Cal. App. 11, 148 Pac. 796. 4. While the sheriff may sell without an order of the court or judge the perishable property, yet the correct practice is for the to proceed under section 548.Henry Cowell Lime & Cement Co. v. Figel, 27 Cal. App. 11, 148 Pac. 796. parties 1. The discharge of the attachment; or, 2. The satisfaction of the judgment.— Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244. 3. A garnishee's liability in the case of a debt due from him is grounded upon and is limited by his liability to the defendant in the principal action whereby the latter has at the time of the garnishment a cause of action, present or future, against him.American Exchange Nat. Bank v. Superior Court, 29. Cal. App. 8, 154 Pac. 279. 4. What may be garnisheed. The liability of a stockholder of a corporation on an assessment is a debt subject to garnishment, it being a liability arising from contract.-Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244. 5. Who may be garnisheed.—A judgment creditor may bring an action against a garnishee upon whom notice was served under an attachment issued in the action before judgment, without first availing himself of proceedings supplementary to execution.Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244. 6. After the delivery of a check, the drawer can not be garnisheed as debtor of the payee in respect to the debt for which the check is given.-American Exchange Nat. Bank v. Superior Court, 29 Cal. App. 8, 154 Pac. 279. § 545. 1. Citation of garnishee. A judgment debtor is not a party to a garnishment proceeding to condemn a claim due him from a third person, and is not bound by a judgment discharging the garnishee.-New York Life Ins. Co. v. Dunlevy, 241 U. S. 518, 60 L. Ed. 1140, 36 Sup. Ct. Rep. 613. § 548. 1. Attachment -Order directing sale.Where the defendants desire to have attached property sold before the termination of the action, they should apply for an order directing its sale.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. 2. If it had been made to appear satisfactorily to the court that the interest of the parties would have been subserved by a sale thereof, it would have been its duty to make such an order without regard to the question whether or not the property was perishable.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. 3. The decision of the trial court upon the question of propriety of ordering a sale is final and conclusive, for no appeal has been provided for therefrom.-Henry Cowell Lime & Cement Co. v. Figel, 27 Cal. App. 11, 148 Pac. 796. 4. Although section 547 makes it the duty of the sheriff, without an order from the court or judge, to sell perishable property, and the officer could be compelled by proper process to perform it, yet it is doubtless the correct practice for the parties to proceed under this section where the property is of a perishable nature, and upon such showing be entitled to an order directing its sale, since obviously the sale of property of that character would certainly be to subserve the interests of the parties to the action.-Henry Cowell Lime & Cement Co. v. Figel, 27 Cal. App. 11, 148 Pac. 796. § 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 1. Release of attachment.-Where the owner of the property attached desires to avoid the expense of keepers' fees, he should have the attachment released under bond, or apply to the court for an order for its sale.-Callahan v. Danziger, 172 Cal. 738, 158 Pac. 760. § 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. 1. 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. Release of attachment-Action on undertaking.-In an action on an undertaking to release property attached, the issuance and return of an execution are not rendered unnecessary, and therefore excused, by reason of the fact that the judgment debtors had gone into bankruptcy and had never obtained their discharge, as the national 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. 2. Irregularities waived 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. § 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 affidavit, 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 v. Trafton, 31 Cal. App. 30, 159 Pac. 819. 4. 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. § 564. 1. CHAPTER V. RECEIVERS. § 570. Disposition of unclaimed funds in hands of receiver. Appointment of receiver.-In an action to foreclose a deed of trust securing bonds, a holder of bonds who does not appear in the proceeding individually is bound by the bona fide acts of the plaintiff, as trustee for the holders of the bonds, in making an application for the appointment of a receiver; when, however, he does so appear, he is entitled to stand upon his own rights and to take such action as he sees fit for the protection thereof.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564. 2. It is the duty of such a bondholder, however, to make timely objection to the appointment of the receiver, and failure to make such objection is a waiver of such right.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564. 3. Such a bondholder is not entitled upon appeal to present points of attack which he did not present in the court below, and where his motion to discharge the receiver is founded on the sole ground that the undertakings were insufficient, he can not, after final decree, raise in the appellate court for the first time the objection that the complaint and the affidavit accompanying it were insufficient to authorize the appointment of the receiver, although such objection would have been good if not waived.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 564. 4. In the event that the interested parties can not agree as to whom payments made from time to time under the contracts of sale shall be made, the court may, in aid of the final judgment in partition, appoint a receiver for that purpose under the provisions of section 564 of the Code of Civil Procedure.-Rich v. Smith, 26 Cal. App. 775, 148 Pac. 545. 5. In the absence of an affirmative showing that the court abused its authority in appointing the receiver the due regularity of the court's action in that regard will be presumed. In other words, where there is no bill of exceptions or other record showing on what evidence the court based its order the presumption will be indulged that the court had before it facts sufficient to justify the order notwithstanding that the facts disclosed by the complaint might not in themselves, taken alone be enough to warrant the appointment under this section.-Ulm v. Prather, 29 Cal. App. 92, 154 Pac. 611. |