Coon v. Biscailuz

California Court of Appeal Oct 11, 1934 No. Civ. 10044Published

Before: Willis

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Holding. The court held that mandamus is not an appropriate remedy to compel a sheriff to release attached property when there is a factual dispute regarding the claimant's status, as the claimant has an adequate legal remedy by moving the court that issued the attachment to order the release.

Issues

Whether mandamus is available to compel a sheriff to release attached property when the claimant's status as a mechanical engineer is disputed.
Whether the petitioner has an adequate remedy at law by moving the court that issued the attachment to release the property.

Disposition. Alternative writ dismissed and peremptory writ denied.

Quotations verified verbatim against the opinion

“If there is any adequate legal remedy, mandamus may not be resorted to as a substitute therefor.”

“The right of the petitioner herein to secure the release of the property in question is disputed on the basis of facts existing in relation to her status and use of the property.”

WILLIS, J.,

pro

tem.

The alternative writ of

mandamus

was issued herein directed to the sheriff of Los Angeles County to forthwith release certain personal property held by him under writ of attachment and release of which had been demanded of him by petitioner on a claim of exemption based on provisions of section 690 of the Code of Civil Procedure, or show cause why he has not done so. By his return the sheriff admits possession of the property under writ of attachment issued in an action against petitioner and others for debt, and that the property is personal property of petitioner, but puts in issue the character or status of petitioner as one entitled to claim the exemption as made.

It appears from the petition that after levy and seizure of her property by the sheriff, petitioner filed a verified claim of exemption thereof, alleging that she was a mechanical engineer and that the property attached is necessary to carry on her trade and craft. By a counteraffidavit, made on behalf of the attaching plaintiff in the action, her title was denied on information and belief and on the same basis it was denied that she was a mechanical engineer. Confronted with this controversial situation the sheriff refused to release the property from attachment, and this method has been employed by the unsuccessful claimant to secure such release. The return herein eliminates the previous issue of ownership but creates an issue of fact in respect to petitioner’s status as a mechanical engineer. From the state of the record herein it appears that claim might be made for exemption of portions of the property described under subdivision 1 of section 690 of the Code of Civil Procedure, and of other portions of such property under subdivision 4 thereof, provided the latter claim was based on undisputed facts as to status of petitioner as a mechanic or artisan.

[348]

The writ of

mandamus

is the remedy provided to prevent a failure of justice when there is not a specific remedy in the ordinary course of law. If there is any adequate legal remedy,

Coon v. Biscailuz

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WILLIS, J.,

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