Huston v. Abbott

WARD, J.,

pro tem.

These appeals arise out of the sale of a growing crop of lettuce upon which an attachment had been levied in an action by plaintiff against the owner of the crop. In the original action the sheriff of Monterey County served a copy of the attachment upon the occupant of the land and properly recorded the notice thereof. Subsequently a judgment was obtained and a writ of execution returned wholly unsatisfied. Prior to judgment, but after the levy of the attachment, the occupant of the land sold the growing crop to the Ice Kist Packing Company, a corporation. The attaching creditor filed an action against the sheriff, and the bonding company for the sheriff. The sheriff cross-complained against the packing company, praying for damages identical as set forth by the plaintiff in the complaint against the sheriff and the bonding company. The court found: that the sheriff had neglected to safely keep the attached property, as by law required, in that he left the crop unattended from the date of the levy to the period of the removal of the crop; that the packing company purchased the crop at a time when it was a perishable crop and subject to the levy of attachment; that in “harvesting and carrying away”, the packing company converted the crop to its own use; that plaintiff knew of the progress of growth and the time when the crop was ready for harvest but that he was not negligent in failing to apply for the appointment of a receiver, and directed the entry of judgment in favor of plaintiff on the complaint against the sheriff, and in favor of the sheriff on the cross-complaint against the packing company.

The main question raised by the appeals it whether it was negligence on the part of the sheriff under the provisions of the Code of Civil Procedure at the time of the attachment proceedings requiring him to “safely keep” the property, to fail to appoint a keeper to care for the crop until matured, or to fail to sell the property; or was it negligence of the attaching creditor to fail to apply to the court for the appointment of a receiver.

[8]

Section 547a of the Code of Civil Procedure provides in part: “Whenever a writ of attachment is issued and the holder of such writ desires to attach, or has attached, property which is perishable, or which will greatly deteriorate in value unless properly cultivated, cared for, harvested, packed or sold, the court issuing such writ, upon application of the holder thereof, and after due notice to the owner of said property, may appoint a receiver to take charge of said property and to cultivate, care for and preserve the same and, when necessary, harvest, pack and sell such property.” This section seems to have been enacted for the benefit primarily of the attaching creditor and, if invoked, depending upon the terms of the order, might relieve the sheriff entirely from the disposition of the property. It was probably inspired by reason of the limitations of sections 547 and 548 of the Code of Civil Procedure, which provide merely for the sale and not the care or cultivation of perishable property, or other property which would deteriorate in value unless special attention and care should be given. It is possible that cultivation or care might result in a delayed sale to the benefit of the debtor as well as the creditor. The purpose of the section is to safeguard the rights of all the parties. The expenses may be imposed upon the property or the attaching creditor. The creditor might be sending good money after bad, and so the legislature has not provided that the creditor must avail himself of the remedy set forth in section 547a, but has merely made it permissive. If the holder of the writ “desires to attach, or has attached”, he may apply for the appointment of a receiver, but the right to appoint is left entirely to the discretion of the court. We conclude that the failure to apply is not in and of itself negligence, but it may be negligence, depending upon the facts of a particular case.