Anaheim National Bank v. Kraemer

JENNINGS, J.

Plaintiff appeals from an order discharging an attachment in an action on a promissory note executed by defendants.

The notice of motion given by defendants specified that the motion would be made on the grounds that the attachment had been irregularly and improperly issued and levied. By a motion made in pursuance of such a notice, a defendant whose property has been attached is entitled to question the sufficiency of the affidavit upon which the writ issued.

(Stanford Hotel Co.

v.

Schwind Co.,

180 Cal. 348 [181 Pac. 780];

Fairbanks, Morse & Co.

v.

Getchell Co.,

13 Cal. App. 458 [110 Pac. 331].) It is well settled that if the court’s order can be upheld upon any ground urged an appellate court will not interfere.

(Willett & Burr

v.

Alpert,

181 Cal. 652, 664 [185 Pac. 976].) The contention is made that such a ground exists in an alleged defect in the affidavit. That portion of the affidavit material to the present inquiry is in the following language: “That the payment of the same has been secured by a mortgage or lien upon real estate but that the security or lien has become valueless without the act of plaintiff or person to whom security was given.” The alleged defect is said to lie in a failure to have negatived the existence of any security other than that specified. Section 538 of the Code of Civil Procedure as it existed at the time the affidavit herein was made, provides that an affidavit for attachment must show that the payment of the indebtedness for which the

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action is brought has not been “secured by any mortgage or lien upon real or personal property or any pledge of personal property, or, if originally so secured, that such security has without any act of the plaintiff, or the person to whom the security was given, become valueless”. It is urged that where an attaching creditor states that he originally had security for the debt due him in the form of a mortgage or lien upon real estate and that such security has become valueless he must, in order to comply with the requirements of the statute, further specify that he has no additional security, e. g., a mortgage or lien upon personal property or a pledge of personal property. The contention appears to be meritorious. For all that appears in the affidavit under consideration, affiant may have had ample security for the note sued upon, in the shape of a mortgage or lien upon personal property or pledge of personal property in addition to the mortgage or lien upon real estate which he states has become valueless. Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed or no rights will be acquired thereunder.