Rosenberg v. Bullard

PULLEN, P. J.

This appeal is before us on rehearing. The contention of appellant is that the trial court was without jurisdiction to enter the judgment here complained of.

[119]

Defendant was a nonresident. An action tras commenced against her and a writ of attachment was issued and levied upon certain real property belonging to her situate in this state. Upon her failure to answer, default was taken. Thereafter she appeared' specially and moved to dissolve such attachment and to vacate and set aside the judgment. The motion, in both particulars, was granted. Prom this order plaintiff appealed. Thereafter, and while said appeal was pending, defendant moved that the cause be set down for trial and supported the motion by affidavit that she would suffer irreparable injury if the cause were not disposed of, as the title to her property was clouded, etc. The motion was granted and the cause was set for trial and duly tried, resulting in a judgment for plaintiff. It is an appeal from this latter judgment which brings this matter before us. In the meantime the appeal from the order' setting aside the judgment by default and vacating the attachment had been affirmed.

Appellant urges various grounds for reversal, but we will notice but one, and that one compels a reversal.

Upon the taking of the appeal from the order setting aside the judgment by default and vacating the attachment, the trial court was without jurisdiction to proceed until that appeal had been terminated. (Code Civ. Proc., sec. 946;

2

Cal. Jur., p. 415.) It is immaterial, although unfortunate, that the cause was brought to trial pending the appeal, upon the solicitation of defendant. It is a question of jurisdiction and' not of estoppel.

Respondent urges that the cause was not before the court of review upon its merits upon the first appeal, the question being, so respondent contends, as to the regularity of the attachment only, which it is urged is a collateral matter only. With this we cannot agree. The defendant being a nonresident, no personal judgment could be rendered against her. Any judgment so rendered was enforceable only to the extent of the property attached. An attack upon the validity of the attachment had as its real purpose an attack upon the validity of the judgment itself, which, under the circumstances, would of necessity fall if the attachment failed. The record discloses that the appeal was both upon the motion to dissolve the attachment and from