Palmer v. Fix

THE COURT.

The appellants and cross-complainants herein have moved this court for an order which would have the effect of extending the lien of an attachment' issued and levied upon the real property of the plaintiff and respondent herein at the time of the filing of the cross-complaint in this action and the lien of which attachment is . about to expire under the provisions of section 542a of the Code of Civil Procedure. The said motion has been presented upon the theory that, under the provisions of the section of the code above referred to, this court has by virtue of the appeal which is pending herein the sole jurisdiction to make the order sought. The portion of said section of the code upon which this claim is predicated reads as follows:

“The attachment whether heretofore levied or hereafter to be levied shall be a lien upon all real property attached for a period of three years after the date of levy unless sooner released or discharged as provided in this chapter, by dismissal of the action or by entering and docketing of judgment in the action. At the expiration of three years the lien shall cease and any proceeding or proceedings against the property under the attachment shall be barred; provided, that upon motion of a party to the action, made not less than five nor more than sixty days before the expiration of said period of three years, the court in which the action

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is pending may extend the time of said lien for a period not exceeding two years from the date on which the original lien would expire.”

We are of the opinion that the clause in the foregoing portion of said section of the code which requires a motion for the extension of the lien of an attachment to he made in ‘

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the court in which the action is pending ’ ’ has reference to the court wherein the action was commenced and wherein it remained pending under the provisions of section 1049 of the Code of Civil Procedure, “from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” The effect of an appeal upon the pendency of an action is provided for in section 946 of the Code of Civil Procedure, which reads in part as follows: “Whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein . . . but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from.” The matters referred to and provided for in section 542a of the Code of Civil Procedure, above set forth, are matters which are not embraced in the appeal herein and are not affected by the judgment or order appealed from, and hence under the provisions of section 946 of the Code of Civil Procedure, above quoted, have not been transferred from the court in which this action remains pending to this court for determination upon this appeal, or for the making of any order with relation thereto. In our opinion the sole jurisdiction to make such order under the provisions of section 542a of the Code of Civil Procedure abides in the superior court from the judgment in which court this appeal has been taken.