Barron v. Tattenham

California Court of Appeal Jan 15, 1962 No. Civ. 19824Published

Before: Shoemaker

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Holding. The court held that an alimony and child support lien created by a court order appointing a receiver is superior to a subsequent attachment lien, even if the attachment creditor had no notice of the prior lien.

Issues

Whether an appellant may challenge a jurisdictional transfer order on appeal from a final judgment after failing to appeal the order itself.
Whether a court-ordered lien for alimony and child support takes priority over a subsequent attachment lien by a creditor who gave no new value.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The merits of an order may not be considered on appeal from the final judgment if the order itself was appealable and this remedy was not exhausted.”

“The rule is well established that an attaching creditor who gives no new value has none of the characteristics of a bona fide purchaser. He stands in the shoes of the debtor, and his lien attaches only to the debtor’s interest at the time of the levy.”

SHOEMAKER, J.

This is an appeal by plaintiff Theodore Barron from a judgment holding that an alimony and child support lien of intervener Alix Tattenham was prior and superior to plaintiff’s attachment lien.

The facts are undisputed. On November 23, 1959, intervener Alix Tattenham was awarded an interlocutory decree of divorce from Robert Tattenham, said decree providing that Robert Tattenham pay Alix Tattenham $1.00 per month alimony and $55 per month for the support and maintenance of each of the parties’ two children. Robert Tattenham failed to make the payments as ordered and Alix Tattenham applied to the court for an order appointing a receiver. The court found that Robert Tattenham had abandoned his regular employment to move permanently to Europe, and that he was in arrears in the payment of child support. The court also found that he was the owner of an interest in certain real property known as 1135 Monterey Boulevard, San Francisco, which was about to be sold. Therefore, on March 18, 1960, the court appointed a receiver to take possession of the proceeds of the pending sale and to pay child support and alimony from these proceeds as the payments became due.

On April 1, 1960, plaintiff Theodore Barron commenced the instant action against Robert Tattenham in the Municipal Court of San Francisco, to recover the sum of $1,450 plus interest, alleging that on February 5, 1960, he had made a loan in this amount to Robert Tattenham. Immediately upon filing his complaint, plaintiff obtained a writ of attachment and on April 5, 1960, levied upon the property known as 1135 Monterey Boulevard, San Francisco.

On April 13, 1960, Alix Tattenham was granted permission to intervene, and she thereupon cross-complained for a declaratory judgment that her alimony and support lien was superior to the attachment lien of appellant. Alix Tattenham also moved for an order transferring the action to the superior court on the ground that her cross-complaint for declaratory relief could be heard only in the superior court. Upon the

[130]

denial of this motion by the municipal court, intervener Alix Tattenham petitioned the superior court for a writ of prohibition and mandate ordering the action transferred. The writs prayed for were granted and the action was transferred to the superior court.

Barron v. Tattenham

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SHOEMAKER, J.

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