Beshara v. Goldberg

[393]

BURKE, P. J.

The issue in this appeal is the validity of a purported levy of attachment of certain oil royalty payments. Plaintiff, Beshara, sued Petrie, defendant, for money due on a promissory note and, at the commencement of proceedings, purportedly attached monies payable to defendant pursuant to a recorded “assignment of oil payment.” The writ of attachment was duly issued and delivered to the sheriff for levy. The sheriff caused the recordation of a true copy of said writ, together with a description of the property attached and a notice that it was attached. The sheriff filed his return as a “return on personal

[394]

property, ’ ’ certifying that he had delivered such documents to the recorder for recordation. He made no personal service of the writ on any occupant of any property, nor did he post copies of such documents on any real property. The property sought to be attached was described as “All right, title and interest of Defendant C. A. Petrie in and to that certain ‘Assignment of Oil Payment’ recorded September 27, 1960, in Book .... Said assignment being from Buttram Texhoma Company to F. R. Anderson & C. A. Petrie covering oil pa) ment rights in and to oil and gas extractions from real property as described ... .”

Defendant Petrie stipulated to the entry of a judgment against himself for approximately $10,000, but, prior to the entry of any judgment, he transferred his royalty interests to William Goldberg, appellant, for $30,000 cash. After entry of judgment, plaintiff sought to levy execution on the attached property. Goldberg filed a third-party claim in the proceeding between plaintiff and Petrie and stated, for release bond purposes, that the property was of a value of $45,000. The assignment to Goldberg from Petrie contained an option for one year to repurchase the rights conveyed for the sum of $60,000. The assignment also contained a statement, “there are no outstanding attachments or liens against his said interest.’’ Goldberg also made a motion to quash the purported levy of attachment. Plaintiff filed a motion to quash the third-party claim. The court granted the motion to quash the third-party claim and denied the motion to quash the levy of attachment. From this last order Goldberg appeals.