Gentlemen's Resale West v. Superior Court

Opinion

ROTH, P. J.

On June 22, 1971, Edson Stroll (Stroll), the real party in interest in this proceeding for mandate, sued Gentlemen’s Resale West (petitioner) and concurrently attached petitioner’s place of business, installing a keeper. The attachment was released by the sheriff on June 28 pursuant to Code of Civil Procedure section 540 when petitioner deposited a cash bond with the sheriff. On September 23 pursuant to motion theretofore made on the ground that the attachment was unconstitutional under the holding of

Random

v.

Appellate Department,

5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13], the trial court dissolved the attachment but refused to' order the sheriff to release the cash bond and return it to petitioner.

On October 14 the trial court denied petitioner’s motion for an order specifically requiring the sheriff to release the cash bond. The motion was made on the grounds that (a) the bond was deposited solely to effect a release of the attachment and the court having dissolved the attachment under

Random,

its failure to order return of the bond was unreasonable and arbitrary; and, (b) that the deposit of a cash bond by petitioner, being made solely to release the attachment, was not a free and voluntary act.

[520]

Neither of the minute orders of September 23 or October 4 state any reasons for the refusal of the court to order the return of the cash bond to petitioner.

The argument made in Stroll’s brief appears to assume that the payment was not voluntary but proceeds on the theory that petitioner made no showing to convince the trial court that it had a clear, present ministerial duty to order the return of the bond. Respondent’s argument is (a) that the court did not abuse its discretion by refusing to make the order and on the ancillary ground (b) that the sheriff should have been made a party to the motions. No sustaining authority is cited for this latter proposition.