Peterson v. Groesbeck

*Supp. 755

WILSON, J.,

pro tem.

Plaintiff has appealed from a judgment of the municipal court rendered in proceedings had pursuant to section 689 of the Code of Civil Procedure. The section provides that when property levied upon is claimed by a third person as his property a verified written claim shall be filed setting out his title and right to the possession thereof, whereupon a hearing shall be granted by the court, notice of which hearing shall be given to all parties claiming an interest in the property, .the notice to specify that the hearing is for the purpose of determining the title to the property in question. The verified third party claim is treated as a pleading, and all parties in interest are permitted to introduce evidence.

On April 16 and 17, 1936, plaintiff caused attachments to be levied by the marshal of the said court upon defendant’s salary amounting to $215. Defendant filed his petition in bankruptcy on April 27, 1936, and on the same day was adjudicated a bankrupt. Subsequently Ignatius F. Parker was designated as trustee of the bankrupt’s estate, whereupon he filed with the marshal a third party claim for the fund held under attachment. Time for hearing the same was fixed, notice thereof was given, and after a trial of the issues raised by the said claim the court adjudged that the title to the money was vested in the trustee in bankruptcy. From this judgment plaintiff has appealed. Appellant argues that the municipal court was without jurisdiction to determine, under the provisions of the said section 689, whether or not the defendant was insolvent upon the dates of the levies, because, says the appellant, proceedings under the said section are summary in aid of attachment or execution, and the validity of the lien and the solvency or the insolvency of the defendant must be determined in a plenary proceeding.

The proceeding now under review is a special proceeding, and, from the viewpoint of the creditor, if from none other, is in aid of attachment or execution

(Misrach

v.

Liederman,

(1936) 14 Cal. App. (2d) (Supp.) 757 [58 Pac. (2d) 746]), and is treated as a summary proceeding.

(Spiegelman

v.

Bowlus,

(1936) 15 Cal. App. (2d) (Supp.) 765 [59 Pac. (2d) 225].) There is no rule, as contended by appellant, that the trustee’s claim here cannot be determined in a summary proceeding. A summary proceeding,