Spiegelman v. Bowlus

BISHOP, J.

Standing between us and the judgment appealed from is the shadow of a final order granting a

[766]

new trial. We say the order is final because recently in a cross-appeal in this same action we dismissed an appeal from the order on the ground that an appeal therefrom would not lie. If the order is valid, the appeal from the judgment should be dismissed because the problems it presents are moot.

(Kower

v.

Gluck,

(1867) 33 Cal. 401, 407, as interpreted in

Pierce

v.

Birkholm,

(1896) 110 Cal. 669, 673 [43 Pac. 205], and in

Jackson

v.

Dolan,

(1927) 202 Cal. 468, 471 [261 Pac. 706].) Our first task, therefore, should be to determine the validity of the order granting a new trial.

We are of the opinion that the order is nugatory because it was made without statutory authority. The proceeding in which the order appears was a hearing to determine title to property claimed by a third party after a levy under attachment. Since the amendments adopted in 1935 became effective, section 689 of our Code of Civil Procedure prescribes rather in detail the steps to be followed in such a proceeding. Omitting some provisions having to do with other matters, that portion of the section dealing with the hearing reads as follows : “the plaintiff or the person in whose favor the writ runs, the third party claimant, or any one or more joint third party claimants, shall be entitled to a hearing in the court in which the action is pending or from which the writ issued for the purpose of determining title to the property in question. Such hearing must be granted by the said court upon petition therefor, which must be filed within ten days after the delivery of the third party claim to the officer. Such hearing must be had within twenty days from the filing of such petition, unless continued as herein provided. Ten days’ notice of such hearing must be given to the officers, to the plaintiff or the person in whose favor the writ runs, and to the third party claimant, or their attorneys, which notice must specify that the hearing is for the purpose of determining title to the property in question; provided, that no such notice need be given to the party filing the petition. The court may continue the hearing beyond the said twenty-day period, but good cause must be shown for any such continuance. ... At the hearing had for the purpose of determining title, the third party claimant shall have the burden of proof. The third party claim delivered to the officer shall be filed by him with the court and shall constitute the plead