Clary v. Rupert

MOORE, P. J.

Defendant Rupert having deceased three months after the filing of this action and the due levy of a writ of attachment upon his property, his administratrix moved to dissolve the writ by reason of such death. She now appeals from the order denying the dissolution.

It has been the established law for over 80 years that the death of a defendant destroys the lien of an attachment

[845]

upon Ms property.

(Turner

v.

Fidelity & Deposit Co.,

187 Cal. 76, 84 [200 P. 959];

Everett

v.

Hayes,

94 Cal.App. 31, 32 [270 P. 458];

Ham

v.

Cunningham,

50 Cal. 365, 366;

Hensley

v.

Morgan,

47 Cal. 622,

623; Myers

v.

Mott,

29 Cal. 359, 367 [89 Am.Dec. 49].) No deviation from such holdings appears among this state’s judicial decisions. Respondent urges that the Legislature by the last three words of section 542b of the Code of Civil Procedure

*

has clearly implied that the lien of attachment is to continue after the death of the defendant. Courts will not ignore a venerable rule of practice upon a mere implication of a statute. An intention on the part of the lawmakers to deviate from a procedure hoary with age must be unmistakably indicated. The doctrine of stare decisis is too firmly entrenched to be thus eradicated. In the absence of a definite statute altering a rule, the decisions of the Supreme Court must be followed.