Whitney v. Superior Court

RICHARDS, J.

Petitioners herein apply for a writ of prohibition to be directed to the respondents herein, having for its purpose the restraining of the respondent court and the judge thereof from hearing and determining a motion "made by the plaintiff in a certain action for an order of said court extending the time of an attachment lien pursuant to section 542a of the Code of Civil Procedure. The facts upon which the application is predicated and which are not in dispute are the following: On December 1, 1922, M. Blum & Company, a corporation, commenced an action in the Superior Court in and for the city and county of San Francisco against one Eric Larson to recover the sum of 012,980.33, alleged to be due for services performed, cash advanced and.on an account stated. An attachment was regularly issued in said action and levied upon certain parcels of land belonging to Larson situate in the county of San Diego. On December 11, 1922, Larson and his wife, for a valuable consideration, conveyed the title to said property to El Cajon Vineyards Incorporated, and the latter on December 26, 192'2, conveyed the title to the same property to the Valley Bank of Fresno, a corporation, as trustee for the purpose of securing payment of certain bonds issued by said El Cajon Vineyards Incorporated. Thereafter the defendant Larson in said action presented an undertaking in due form of law for the release of said attachment and thereupon and upon notice duly given to the plaintiff in said action* presented said motion to said superior court, which thereupon, after the attorneys for said plaintiff had waived further justification of the sureties upon said undertaking, on December 29, 1922, made an order discharging said

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attachment and directing the sheriff of the county of San Diego to release the said real property and the whole thereof therefrom and from the lien thereof, and thereafter and on the third day of January, 1923, and pursuant to said order the said sheriff did release in writing said property from said attachment and from the lien thereof. No appeal was taken from said order and the same has long since become final. On the same day upon which the order of said court was made and entered discharging said attachment, namely, on December 29, 1922, the defendant Larson filed a demurrer to the complaint in said action, and also and at the time of filing thereof filed a notice of motion for change of place of trial of said action from the city and county of San Francisco to the county of Fresno, upon the ground that he was a resident of the last-named county, and which notice of motion was supported by the demand and affidavit required by law. Said motion came on for hearing January 12, 1923, in said court and was granted and said cause was by virtue thereof transferred to the county of Fresno, where it was subsequently tried and a judgment rendered therein in favor of the plaintiff against the defendant Larson for the sum of 114,318.02 and costs. Said judgment was entered on April 21, 1924, and no appeal was taken therefrom, nor were there any further proceedings had or taken in said action until November 1, 1925, when the plaintiff therein served and filed its notice of motion, to extend the lien of said attachment, the granting of which motion is sought to be prohibited by the issuance of the writ applied for herein. In the meantime the El Cajon Vineyards Incorporated had defaulted in the payment of its aforesaid bonds, and on December 13, 1924, the Valley Bank of Fresno as trustee had, after proceedings taken as provided in its said deed of trust, sold said real property at trustee’s sale to Messrs. Sprague, Tyler and Whitney, who are three of the petitioners herein, and who thereafter conveyed various parcels thereof to the other petitioners herein, with the result that the entire property which had been the subject of said attachment in said action is now owned by these petitioners, who are, respectively, purchasers for -value thereof. The foregoing facts appear from the petition herein, and it further appears therefrom that said respond-ent court and the judge thereof is threatening to make, and