Rowe v. Stoddard

THOMPSON, J.

This is an appeal from an order denying a motion to recall and quash a writ of attachment which was prematurely and wrongfully granted prior to the issuing of the summons in this suit.

The complaint in this case was filed November 16, 1935. On the same day a writ of attachment was wrongfully issued therein and forthwith levied upon certain personal property belonging to the defendants. The summons was not then issued, and so far as the record discloses, it has never been issued. No written undertaking on attachment was filed as required by the provisions of section 539 of the Code of Civil Procedure. Neither was cash deposited with the clerk in lieu thereof as required by section 1054a of the same code. The plaintiffs merely deposited with the clerk their personal check in the sum of $200 in lieu of an undertaking on attachment. The complaint alleges a cause of action for conversion of personal property. It fails to allege a contract, express or implied, for the payment of money to the plaintiffs.

The defendants moved to recall and quash the writ of attachment on the grounds that (1) it was granted prior to the issuing of the summons; (2) that no undertaking on attachment was filed with the clerk as required by sections 539 and 1054a of the Code of Civil Procedure, and (3) that the complaint is based upon conversion of personal property and fails to state an action upon a contract express or implied, for the direct payment of money. This motion was denied. From the order denying defendants’ motion to recall and quash the writ of attachment, Fred E. Barnett and Fred E. Barnett Company have appealed.

The attachment was prematurely and wrongfully issued in this case for the reason that no summons was then issued. The writ of attachment is therefore void and ineffectual. (Sec. 537, Code Civ. Proc.;

Low

v.

Henry,

9 Cal. 538;

Henrietta Mining & Milling Co.

v.

Gardner,

173 U. S. 123 [19 Sup. Ct. 327, 43 L. Ed. 637].) The right to

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