Hallam Cooley Agency, Inc. v. Superior Court

McCOMB, J.

This is an original application for a writ of prohibition to restrain respondent court from making an order releasing a portion of funds held by the sheriff pursuant to a writ of attachment on the ground that said funds are exempt from attachment.

The material facts are:

October 5, 1938, petitioner filed an action in respondent court against Robert Gleckler and obtained a writ of attachment which the sheriff served upon the Bank of America National Trust & Savings Association, which made a return to the sheriff that it was holding $2814.21 belonging to Mr. Gleckler. October 24, 1938, respondent court made an order discharging the writ of attachment above mentioned upon the ground that it was not a proper case for the issuance of a writ of attachment. October 29, 1938, petitioner appealed to this court from such order, filing an undertaking to preserve the attachment pending determination of the appeal. November 2, 1938, Mr. Gleckler made a motion before respondent court for an order releasing $700 of the fund which was being held pursuant to the attachment, upon the ground that said $700 was money which was exempt from attachment Respondent court announced that it would make such order unless restrained by this court, whereupon an alternative writ of prohibition was issued.

This is the sole question to be determined:

When an appeal has leen taken to the District Court of Appeal from an order of the Superior Court discharging a writ of attachment levied upon funds in a lank, and the plaintiff appeals from said order, filing an undertaking as

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provided by section 946 of the Code of Civil Procedure to continue the attachment in force pending determination of the appeal, does the Superior Court have jurisdiction prior to the determination of the appeal to make an order releasing a portion of sañd funds from attachment upon the ground that they are exempt therefrom under the provisions of section 690.11 of the Gode of Civil Procedure?

This question must be answered in the affirmative. The law is established in California that, notwithstanding the perfection of an appeal and stay of all proceedings upon the order appealed from and matters embraced therein, the superior court may proceed upon any other matter embraced within the action and not affected by the order appealed from. (Code Civ. Proc., sec. 946;