Schoutens v. Superior Court

DORAN, J.

The petition for a writ of prohibition alleges that on June 6, 1949, the petitioners, husband and wife, commenced an action in superior court against one Harvey L. Cole, seeking to recover $9,995 and interest, for money had and received. Incidental thereto, petitioners caused a writ of attachment to be issued which was thereafter levied upon certain real property, and all debts due and owing to defendant

[856]

from the California Bank, 1600 North Vine St., Los Angeles, California. To the foregoing petition respondents filed a general demurrer and answer.

On September 20, 1949 Harvey L. Cole served upon petitioners notice of a motion to discharge the attachment on the ground that the writ was improperly and irregularly issued, which motion was granted with a stay of execution until October 25, 1949. A “Notice of order discharging attachment” was received by petitioners by mail on November 3, 1949. On November 2, 1949, petitioners filed with the county clerk a surety bond of $19,990, for the purpose of staying execution on said order discharging the attachment, pending appeal from such order. And on November 9,1949, petitioners filed a notice of appeal; a notice to prepare á transcript on appeal was filed on November 15, 1949, and the transcript was filed in the District Court of Appeal on March 16, 1950. Such appeal is now pending and undetermined. On November 10, 1949, Cole made a demand on the sheriff to release the attachment on the ground that the appeal had not been perfected within the required time, which demand was refused.

The petition further alleges that on December 30, 1949, Harvey L. Cole filed a petition for writ of mandate to compel release of the attachment, which petition was ‘‘ denied without prejudice to application to Superior Court.” Thereafter, on February 14, 1950, Cole served on petitioners an “order to show cause in re release of attached property,” to which counteraffidavits were filed. On March 6, 1950, after argument, the Superior Court Judge Wm. B. McKesson granted the order, stay of execution thereon being extended until March 28, 1950. The order was granted on the ground that petitioners had failed to perfect the appeal -within the prescribed time. By the present proceedings for writ of prohibition, petitioners seek to prevent the release of said attachment.