American Multigraph Sales Co. v. Charles W. Cradick Co.

[591]

the defendant, who may have his action thereon.” Section 520 of the same code provides that the notice, undertaking and affidavit originally handed to the sheriff, together with his proceedings thereon shall be delivered to the clerk within twenty days after the property is taken. That the plaintiff here sought and was allowed a provisional remedy there can be no doubt. That the first-quoted section provides a manner and method whereby the defendant may obtain relief in such a case as this is equally free from doubt. That the defendant would also have an action against the plaintiff for the wrongful taking and conversion of the property is the holding in

Tapscott

v.

Lyon,

103 Cal. 297 [37 Pac. 225], involving a similar dismissal after answer filed. But it must be apparent that after the dismissal of the action the court was -without authority to render a judgment in favor of the defendant, for the reason that nothing was therein pending.

Judgment reversed.

Craig, J., concurred.

Works, P. J., being absent, did not participate in this opinion. ■