American MacHine & Foundry Co. v. Pitchess

FRAMPTON, J. pro tem.

*

The record herein discloses that on October 21, 1966, American Machine and Foundry Co., hereinafter referred to as respondent, filed separate actions in the Superior Court for the County of Los Angeles seeking the recovery or the value of personal property. One of the actions bearing civil number 896163 named Late Corporation and Mango Corporation, appellants here, as defendants. The other .action bearing civil number 896164 named Card Corporation and Hold Corporation, appellants here, as defendants. The property sought to be recovered in action number 896163 consisted of 32 pinspotting machines and

[492]

other equipment valued at $150,800.85. The property sought to be recovered in action number 986164 consisted of. similar machines and equipment valued at $140,203.50. On or about October 26, 1966, respondent filed with the Sheriff of Los Angeles County affidavits for claim and delivery in each of the aforesaid actions setting forth facts showing that respondent was entitled to the possession of the pinspotting machines and equipment. Respondent further obtained an undertaking for double the value of the property stated in the affidavit for claim and delivery, and filed one such undertaking with the sheriff in each such action. Respondent further instructed the sheriff on or about October 26, 1966, to take the property described in the affidavits from the defendants denominated therein.

On October 28, 1966, Late Corporation and Mango Corporation filed their answer to the complaint in action number 896163, and on the same date Card Corporation and Hold Corporation filed their answer to the complaint in action number 896.164. Subsequent to October 28, 1966, the sheriff refused to take the property claimed in each action on the ground that he had no duty or authority to execute claim and delivery process at any time after the filing of an answer by the defendants.

Following the sheriff’s refusal to take the property into his possession, respondent filed its petition for'writ of mandate to compel the sheriff to take the property and retain it in his custody pursuant to the instructions theretofore delivered to him by respondent. After hearing the trial court rendered judgment directing that a peremptory writ of mandate be issued requiring the sheriff to take the property described in the two actions pursuant to the provisions of sections 509 through 512 of the Code of Civil Procedure and pursuant to the instructions of respondent theretofore given in said actions, and to deliver such property to the respondent. Thereafter, Late, Mango, Card and Hold Corporations, who were not made parties to the mandate proceedings, filed their motion to vacate the judgment on the grounds that they were the real parties in interest and that they were aggrieved by the judgment. The motion to vacate the judgment was denied. The appeal is from the judgment and from the ordér denying ■ the motion to vacate the judgment. .