Davis v. Baker

Temple, J. — This is an action to quiet title, and the only question in the case is, whether a writ of attachment was so levied as to constitute a lien on the premises prior to the conveyance under which the plaintiff claims title. The premises constitute one half of a lot in the town of Chico, having a frontage of 33 feet, and extending back 132 feet. One Ashbrook at the time of the levy had an office upon the lot in a small building, the dimensions of which were said to be 12 by 15 feet. No copy of the writ or notice was left with Ashbrook, but the levy was made by posting on the house as though the premises were unoccupied. The sheriff was examined as a witness, and testified: —

“Question. — Do you know whether or not at that time there was any one living on the premises?

“ Answer. — I do not. When I went there to serve the papers I did not find any one in the house. I waited there quite a while without finding any one, and .... I posted the papers on the house.

“ Think there was a table, and perhaps a chair or so, but it did not look to me as though it was occupied by any one. There was a light burning in the room, and I waited a long time, but no one appeared.....

[496]“ I found nobody in possession when I went there, and no person came while I was there, and there was no occupant at all there that I saw.”

It is insisted that the levy is void, because a copy of the writ and a notice was not served upon Ashbrook, who, it is claimed, was at the time of the levy an occupant within the meaning of section 542, Code of Civil Procedure.

The portions of section 542, which are material to this discussion, are as follows: —

“ Sec. 542. The sheriff to whom the writ is directed must execute the same without delay, . . . . as follows:—

“ 1. Eeal property, .... by filing with the recorder of the county a copy of the writ, together with a description of the property attached, and a notice that it is attached; and by leaving a similar copy of the writ, description, and notice with an occupant of the property, if there be one; if not, then by posting in a conspicuous place on the property attached.”

It must be admitted that the most ordinary meaning of the word “ occupant ” is “ one who occupies or takes possession; one who has the actual use or possession, or is in the possession, of a thing.” Occupancy is said to be the act of holding possession. ' It will be presumed that the word is used in the most usual sense, unless there can be discovered something in the statute itself which indicates a different use of the word in this particular instance, and we think such intent is readily found.