Harvey v. Foster

McKinstry, J. As the answer consists only of general and specific denials of the averments of the complaint, the finding “that all the allegations of the plaintiff’s complaint are true” covers all the issues of fact.

The attachment affidavit filed by plaintiff in the action Harvey v. Logan stated that the indebtedness from the defendant to the plaintiff therein had not been secured by any mortgage or lien, “ or, if originally so secured,” such security had become valueless. The affidavit fails to state the amount of the indebtedness due from Logan to Harvey. (Code Civ. Proc. § 530.)

If the defendant in the action, Harvey v. Logan, had moved to dissolve the attachment, it would have been the duty of the court to have ordered the attachment tobe, dissolved. (Wilke v. Cohn, 54 Cal. 212; Hawley v. Delmas, 4 Cal. 195.) But the lien of the attachment was valid as against the present defendants.

Fridenberg v. Pierson, 18 Cal. 152, was a bill in equity alleging that both plaintiff and defendant were attaching creditors, the defendant’s attachment (upon insufficient affidavit), having been first issued and levied, and prayed that the defendant’s [298]attachment be set aside in favor of the plaintiff. The court held that the bill could not be maintained, citing Drake on Attachment, § 771: “Whatever irregularities may exist in the proceedings of an attaching creditor, it is a Avell-settled rule that other attaching creditors cannot make themselves parties to those proceedings, for the purpose of defeating them on that account. Hawley v. Delmas, 4 Cal. 195, was. an appeal from an order quashing an attachment. So also was Wilke v. Cohn, 54 Cal. 212. In Porter v. Pico, 55 Cal. 173, it was said: “Any irregularities in obtaining it (the attachment) were waived by the defendant to the suit when he appeared and answered, without taking advantage of them by motion or otherwise in the course of the proceedings. The process is merely auxiliary, and the judgment in the action cures all irregularities.” The transcript shows that in the action, Harvey v. Logan, the defendant appeared, etc. If the transaction connected with the sale under the mortgage decree could be held to constitute Kraft, the mortgagee, successor in interest to Logan’s statutory right of redemption, he acquired by it no right to attack the lien of the attachment, since Logan had none.. (Drake on Attachment, §§ 87,112,124, 143, 185, 273.)

The sheriff’s return to the order of sale shows that he received at the mortgage sale the sum of fifteen thousand seven hundred and fifty-three dollars cash. He cannot make any defense inconsistent with his return. (Freeman on Executions, 450; Ferguson v. Tutt, 8 Kan. 370.) A sheriff is concluded by his return when it is set up by any party who may claim something under it. (Crocker on Sheriffs, 46.)