Johnston v. Jones

FINCH, P. J.

Plaintiff brought this action for a writ of

mandamus

to compel the defendant “to dismiss the attachments and garnishments’ ’ issued and levied in an action against plaintiff for the recovery of money. The defendant

[85]

Sheriff executed the writ of attachment in that action “by garnisheeing money” which this plaintiff had on deposit in a certain bank “and also levied said writ of attachment upon real property” belonging to her. Judgment was thereafter entered in said action against this plaintiff as prayed for in the complaint therein. Plaintiff herein appealed from the judgment and filed a good and sufficient undertaking, approved by the judge of the trial court, staying execution pending appeal, and the appeal is still pending. This plaintiff, after the filing and approval of such undertaking, requested the defendant “to release the attachments and garnishments . . . issued in said matter,” but the defendant refused. The trial court entered judgment herein in favor of the plaintiff and issued a peremptory writ of

mandamus

requiring the defendant to release such “attachments or garnishments.” The defendant has appealed on the judgment-roll alone.

Section 671 of the Code of Civil Procedure provides that a judgment “lien continues for five years unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking as provided in this code, in which case the lien of the judgment and any lien by virtue of an attachment that has been issued and levied in the action ceases.” In

Brun

v.

Evans,

197 Cal. 439 [241 Pac. 86], it is held that an attachment lien upon real estate ceases upon the filing of a stay bond on appeal. Whether the term “lien,” as used in section 671, may be applied to the effect of a garnishment has not been decided. Somewhat similar questions were discussed in

Nordstrom