Greene v. Superior Court

KNIGHT, J.

Pursuant to a motion made by one of several defendants in an action pending before the respondent court, and after a full hearing on the merits of said motion, the court made an order directing that the amount of an undertaking on attachment be increased from $4,000 to $25,000. Shortly afterwards petitioner as plaintiff in the action moved the court to set aside said order, and after hearing the motion the court indicated, so petitioner alleges, that the same would be denied. Without waiting further action in the matter petitioner instituted this proceeding in

mandamus

to compel the respondent court to grant his motion. We find no legal ground upon which the writ may issue.

The action was filed in July, 1932, by petitioner, an attorney in New York City, against Nathan, Abe and Jack Seharlin, First and Second Doe, and Scharlin Bros., a copartnership, to recover the sum of $113,617 claimed to be due for legal services; and an order was issued for the publication of summons based upon an affidavit averring that Nathan and Abe Scharlin were nonresidents of this state, and that Jack Seharlin was a resident of this state but was concealing himself to avoid service of summons. Up to the time the present proceedings were instituted there had been no publication of the summons, nor had personal service thereof been made on the nonresident defendants. About four months after the action was filed, upon furnishing an undertaking in the sum of $4,000 and an affidavit which contained the averment also that Jack Scharlin was concealing himself for the purpose of avoiding service of summons, petitioner obtained a writ of attachment which he caused to be levied on numerous bank deposits in San Francisco, aggregating $13,000, all of which stood in the name of Lucy Scharlin, the wife of Jack Scharlin. She served upon the sheriff a third party claim thereto, and in order to prevent the release of the attachment, petitioner furnished the sheriff with an indemnifying bond in the sum of $26,000. Thereupon, petitioner

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caused said writ to be levied on several parcels of real estate situate in the city and county of San Francisco and in the counties of Lake and San Mateo, of the estimated value of $57,500, the record title to which stood also in the name of Lucy" Seharlin, the same having been conveyed to her by her husband about a year prior to the date of said levy; and she made third party claim thereto. In January, 1933, Jack Seharlin, appearing through his attorney, presented a motion to discharge the attachment upon the ground that his whereabouts was not concealed and that summons could be easily served upon him. The motion was denied and during the following month, February, 1933, he appeared in the action and presented the motion above mentioned to increase the amount of the undertaking on attachment upon the ground that the amount of the original undertaking was inadequate. As stated, the motion was heard on the merits and granted; and petitioner’s motion to set aside said order followed.