Stoehr v. Superior Court

California Court of Appeal Oct 6, 1948 No. Civ. 16706Published

Before: McCOMB

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Holding. The court held that the respondent's order directing the sheriff to retain attached mortgaged property was erroneous because the attaching creditor failed to comply with the requirements of Section 689b of the Code of Civil Procedure. Consequently, the sheriff is required to release the property.

Issues

Was the respondent's order of August 16, 1948, directing the sheriff to retain attached mortgaged property erroneous?
Does Section 689b of the Code of Civil Procedure govern the release of attached mortgaged property in this case?

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“In the instant ease the plaintiff has failed to meet any one of the foregoing requirements. Therefore it is the duty of the sheriff to release the attached mortgaged property.”

“The trial court’s order directing the sheriff to retain the property in his custody was erroneous.”

“The facts here are governed by the specific provisions of section 689b of the Code of Civil Procedure.”

McCOMB, J.

Petitioner seeks a writ of prohibition to restrain respondent from refusing to release certain mortgaged property held by the sheriff pursuant to a writ of attachment.

Chronology

(1) On January 9, 1948, Southwest Products Company executed and delivered to petitioner a chattel mortgage securing payment to petitioner of the sum of $13,930.

(2) On July 12, 1948, Southwest Products Company executed and delivered to petitioner another chattel mortgage securing payment to petitioner of an additional sum of $49,000.

(3) On August 10,1948, the Sheriff of Los Angeles County levied upon and took possession of the property described in the chattel mortgages by virtue of a writ of attachment issued in an action entitled

Braunstein

Southwest Products Company.

(4) On August 11,1948, petitioner presented to the Sheriff of Los Angeles County a verified notice, statement and demand in writing, notifying the sheriff that petitioner was the mortgagee of the property so levied upon by him, and that the indebtedness was $51,735.77 plus interest, and further demanding payment of said indebtedness or the release of the property.

(5) On August 16, 1948, respondent made an order directing the sheriff not to release the property which he had levied upon, and at the same time set petitioner’s alleged third party claim for hearing on September 2, 1948. Pursuant to this order the sheriff has refused to release the property described in the mortgage.

(6) Plaintiff in the action of

Braunstein

Southwest Products Company

has not paid to petitioner, nor has he deposited with the sheriff, the amount of the indebtedness

[852]

plus interest due petitioner, and he has not deposited the amount thereof with either the county clerk or treasurer payable to the order of petitioner (mortgagee). Likewise plaintiff has not presented a verified statement to the sheriff that the mortgage is void or invalid and delivered a good and sufficient undertaking in double the amount of indebtedness claimed by petitioner (mortgagee).

Stoehr v. Superior Court

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