Cline v. Superior Court

CONRET, P. J.

In this proceeding a writ of review has been issued "whereby the petitioner seeks to obtain judgment annulling an order made by the superior court of Los Angeles County. In an action wherein one E. 0. Lenox was plaintiff, judgment was entered against several defendants, one of whom was. Max Goldschmidt. A writ of execution upon that

[151]

judgment was duly issued and placed in the hands of the petitioner as sheriff of Los Angeles County. Pursuant to in■structions in writing by the attorney of Lenox, the sheriff levied upon all the right, title, and interest of Max Goldschmidt in and to certain personal property described as property of Goldschmidt Brothers, it being claimed by Lenox that Max Goldschmidt was a partner in that firm. After the levy had been made, one Herman Goldschmidt served upon the sheriff a written claim, verified by his oath and made out in accordance with the provisions of section 689 of the Code of Civil Procedure, claiming as his property the said property levied upon by the sheriff and setting out the right of said Herman Goldschmidt to the possession thereof. Thereupon the sheriff informed the plaintiff’s attorney that he would not make sale of the property unless the plaintiff would, deliver to the sheriff a bond in the sum of three hundred thousand dollars to indemnify the sheriff against such third party claim. The plaintiff declined to furnish the indemnity bond and the sheriff refused to proceed further in the matter without indemnity. Thereupon Lenox, by his attorney, filed in said action an affidavit which stated the foregoing facts and the circumstances in full detail, and asked that the court order the sheriff to advertise for sale and sell the interest of Max Goldschmidt in said property without requiring the delivery of any bond by the plaintiff. An order to show cause was issued and served upon the sheriff, and a hearing was had before the court upon the above-mentioned affidavit and counter-affidavits. The court determined the matter against the sheriff, granted the motion of Lenox, and ordered the sheriff “to sell the interest in the partnership property without requiring bond.” The principal facts are not only stated in the petition, but are admitted by the return filed herein. Together with its return, respondent court demurred to the petition, and has moved the court for an order dismissing this proceeding upon several grounds, of which one is that the petitioner has a right of appeal from said order of the superior court.