Nutzel v. Kozdron

McCOMB, J.

From an order granting defendants’ motion to vacate an attachment levied on funds deposited by defendants in two Los Angeles banks, plaintiff appeals.

These are the essential facts:

On October 30, 1943, plaintiff filed a complaint against defendants in the form of a common count for money had and received in the sum of $9,200 and caused a writ of attachment to be levied upon funds which defendants had deposited in two Los Angeles banks. In order to secure the writ of attachment plaintiff’s attorney filed an affidavit in which it was alleged that plaintiff’s cause of action against defendants arose from the fact that defendants had forcibly robbed plaintiff of the sum of $9,200 on September 10, 1943.

Defendants made a motion to vacate the writ of attachment theretofore issued; at the time of the hearing of the motion to dissolve the writ of attachment plaintiff’s attorney filed an affidavit in opposition to the motion to vacate the attachment in which it was alleged that (a) on September 10, 1943, defendants in the city of Baltimore, Maryland, assaulted and robbed plaintiff of the sum of $9,200, and (b) defendants were not residents of the State of California and had left this state. The trial court granted defendants’ motion to vacate the attachment theretofore issued.

This is the sole question necessary for us to determine:

Did the trial court err in granting defendants’ motion to vacate the writ of attachment which had teen issued?

This question must be answered in the affirmative, and is governed by the following principles of law:

[910]

(D An attachment lies in all cases of an implied contract for the payment of money when the defendant is a nonresident of this state. (Code Civ. Proc., § 537, subd. 2.)

(2) If a defendant steals money from a plaintiff, an implied contract to repay the money arises.

(Los Angeles Drug Co.

v.

Superior Court,

8 Cal.2d 71, 74 [63 P.2d 1124];