O'Connor v. Blake

California Supreme Court Jul 1, 1865Published

Before: Sanderson

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Holding. The court held that while a defendant's attachment lien is dissolved by a judgment of dismissal, a defendant who loses their right to possession between the commencement of the action and the trial is not entitled to a judgment for the return of the property or its value, but only to costs.

Issues

Whether the pendency of a former suit by a vendor is a bar to an action by the vendee.
Whether an attachment lien is dissolved by a judgment of dismissal of the underlying action.
Whether a defendant who loses their right to possession of property after the commencement of an action is entitled to a judgment for the return of the property or its value.

Disposition. modified

Quotations verified verbatim against the opinion

“The defense of a prior lis pendens is available only where the plaintiff at least, in both actions is the same person.”

“In case of a dismissal of a suit for non-appearance of the plaintiff, it must beheld that the judgment for the defendant ipso facto operates as a dissolution of the attachment.”

“the Court will not render a judgment in favor of the defendant for the possession of the property or its value, but will leave the property in the possession of the plaintiff where it belongs, and give the defendant a judgment for costs only.”

Synopsis

Prior Action pending as a Depense.—The defense of a prior Us pendens is available only where the plaintiff at least, in both actions, is the same.

Debts on which Attachments may issue.—An attachment may be issued on a debt contracted at any time since the passage of the Practice Act, April 29th, 1851.

Practice Act concerning Attachments.—The words “made after the passage of this Act,” in the Act concerning attachments, are not limited to debts contracted after the amendment of the Act in 1860, but refer to the Act as passed in 1851.

Return of Officer on Attachment.—Where an officer, by virtue of a second attachment, levies on property already in his possession by virtue of a former attachment, it is only necessary for. him to return that he has attached the interest ^ of the defendant in the property then in his possession.

Judgment for Defendant Dissolves an Attachment.—In case of a dismissal of an action by a Justice of the Peace for non-appearance of the plaintiff, the judgment for defendant operates as a dissolution of an attachment, although the Justice reinstates the case, and the parties appear and try it.

Power of Justice to Vacate a Judgment.—A Justice of the Peace has no power to vacate a judgment of dismissal on the ground of non-appearance of the plaintiff, and reinstate the case.

Judgment in Replevin.—In an action to recover possession of personal property, if the plaintiff takes the property at the commencement of the action, and. the defendant prays a return of it, and the defendant was entitled to the property at the commencement of the action, but his right has ceased and vested in the plaintiff before trial, the judgment should leave the property in plaintiff's possession, hut award costs to defendant.

By the Court, Sanderson, C. J. , Action against a Constable to recover the possession of per-sonal property taken by him under an attachment. Trial by the Court, judgment for defendant, and new trial denied.

[314]The defendant’s answer contains three separate and distinct defenses. First—That the property in question belonged to one Stuart, and that the defendant held the same by virtue of an attachment against Stuart, at the suit of Heywood & Harmon ; second—That there was a former suit pending between one Barrett, plaintiff’s vendor, and defendant to recover the same goods; and third—That the goods were the property of said Barrett, and the defendant held the same under an attachment against Barrett, at the suit of one Otis.

At the trial the plaintiff proved a prima facie case, and rested. The question submitted to us, broadly stated, is whether at the trial the defendant sustained either of his defenses.

He failed to sustain his first defense because he failed to offer any evidence of title to the goods in Stuart at the date of the levey of the Heywood & Harmon attachment.

When another action pending is a har.

He also failed to sustain his second defense because the pendency of a former suit by Barrett, thp plaintiff’s vendor, was no bar to this action. The defense of a prior lis pendens is available only where the plaintiff at least, in both actions is the same person. (Certain logs of mahogany, 2 Sumner, 593; Wadleigh v. Veazie, 3 Sumner, 165.)

Attachment issued out of Justice’s Court, and levy of.

Against the right of the defendant to hold the goods under the Otis attachment which was levied (if levied at all) prior to the sale from Barrett to plaintiff, three grounds are urged by appellant: First, that Otis v. Barrett was not a case in which a Justice of the Peace could lawfully issue an attachment ; second, if it was such a case the attachment was never issued according to law; and, third, if it was lawfully levied the lien thereunder was lost by reason of the subsequent dismissal of the action, notwithstanding such dismissal was after-wards set aside and a new trial granted at which the plaintiff recovered a judgment.

[315]

O'Connor v. Blake

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