O'Brien v. Thomas

SCHAUER, J.

—Plaintiff, who was an attaching and is now an unsatisfied judgment creditor in the case of

O’Brien

v.

Friedman,

number 373,472 in the Municipal Court of the City of Los Angeles, in this action sues the marshal of such municipal court for damages for allegedly unlawfully releasing to a third party claimant a sum of money which had been paid into the custody of said marshal under a writ of attachment levied in such prior action, and from a judgment in favor of the defendant marshal prosecutes this appeal.

The money had been garnisheed as a debt owing to the attachment action defendant Friedman by one Thomas B. White, who paid it to the marshal under plaintiff’s writ, and it was then claimed by the third party Davidson. Plaintiff resisted Davidson’s claim, required the marshal to hold the money, and deposited the undertaking to that end provided for by section 689 of the Code of Civil Procedure. Thereafter a trial to determine title was held pursuant to the provisions of said section 689 and the court adjudged that the title involved was vested in the third party claimant at the time

*Supp. 767

the writ of attachment was levied. Immediately after rendering the judgment determining title the court made a separate written order directing the marshal “to release and pay over to the Third Party claimant” the money in question. No appeal was taken from this order, but plaintiff, upon being advised by a deputy marshal of the fact of rendition of such order, told the deputy that he intended to appeal from the judgment and was told by the deputy that “they would hold the money under attachment and await the outcome of the appeal”. Plaintiff successfully prosecuted such an appeal, the judgment was reversed and on the new trial a judgment, which is now final, was rendered decreeing that the money in controversy was the property of the attachment action defendant. It was therefore properly subject to plaintiff’s writ. In the meantime plaintiff had also recovered judgment on his original cause of action. After securing the judgment determining that title to the attached money reposed in the defendant Friedman he caused a writ of execution-to be issued and placed in the hands of the marshal for partial satisfaction out of the attached money and then learned that such money had been released by the marshal to the third party claimant pursuant to the original order of the court on the day it was rendered and prior to the appeal from the judgment. He thereupon brought this action against the marshal seeking recovery of the amount of money so attached and released.