Clark v. Superior Court

California Court of Appeal Jul 5, 1918 No. Civ. No. 2718.Published

Before: Shaw

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Holding. The court held that the entry of a judgment of nonsuit, in the absence of a timely appeal, operates to dissolve an existing attachment by operation of law, and a subsequent order setting aside the nonsuit cannot revive the dissolved attachment lien.

Issues

Whether the granting of a motion for nonsuit, when entered in the minutes, dissolves an existing writ of attachment.
Whether a subsequent order setting aside a judgment of nonsuit can revive an attachment lien that has already been dissolved.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“The effect of the entry of the order and notation thereof made by the clerk, in the absence of an appeal therefrom within five days as provided in sections 553 and 946 of the Code of Civil Procedure, was to ipso facto dissolve the attachment”

“An attachment is a creature of statute and its existence and operation in any case can continue no longer than the statute provides it may.”

Synopsis

APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel a sheriff to release a writ of attachment.

The facts are stated in the opinion of the court.

SHAW, J.

This is an original proceeding wherein an alternative writ of mandate was issued out of this court, directed to James C. Byers, as sheriff of San Diego County, requiring him to release of record a writ of attachment levied upon certain real estate in said county, or show cause why he should not do so.

It appears that in a certain action wherein Marvin Lathrop was plaintiff and petitioners, Prank C. and Jennie L. Wood-ford, were defendants, a writ of attachment was issued and by the sheriff of San Diego County levied upon the real estate in question; that thereafter in a trial of said action, had on December 7, 1917, defendants, under subdivision 5 of section 581 of the Code of Civil Procedure, moved the court for a nonsuit, in response to which motion the court made the following order: “Cause called, J. M. Love, Esq., appearing as attorney for the plaintiff and Perry P. Backus, Esq., appearing as attorney for defendants. Cause argued by counsel; motion of attorney for defendants' for a nonsuit granted.” This order was entered upon the minutes of the court and on the same day the clerk of the court made a note thereof in his register of actions, all as provided in section 581

supra.

Whether these entries were made on December 7th, as claimed by petitioners, or on December 15th, as claimed by respondents, is immaterial, since, as shown, no appeal was at any time taken from the order.

The claim of petitioners is that the effect of the granting of the nonsuit was to dissolve the attachment, and in this contention we think they are correct.' “An attachment is a creature of statute and its existence and operation in any case can continue no longer than the statute provides it may.”

(Loveland

Alvord Min. Co.,

76 Cal. 562, [18 Pac. 682];

Hamilton

Bell,

123 Cal. 93, [55 Pac. 758].) Section 553 of the Code of Civil Procedure provides that if defendant recovers judgment against the plaintiff and no appeal is perfected and undertaking executed as provided in section 946 of the Code of Civil Procedure, the order of attachment shall be discharged and the property released therefrom. As

Clark v. Superior Court

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Synopsis

SHAW, J.

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