Shea v. Johnson

California Supreme Court Feb 28, 1894 No. No. 18232Published

Before: McFarland

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Holding. A junior attaching creditor cannot challenge a prior attachment on the grounds of a false affidavit regarding the existence of a lien when the underlying debt is admitted to be bona fide and the defendant in the attachment suit does not contest it. Furthermore, the complaint failed to sufficiently plead facts establishing the existence of a prior lien.

Issues

Whether a junior attaching creditor may challenge a prior attachment based on a false affidavit when the underlying debt is bona fide.
Whether the complaint sufficiently averred the existence of a prior lien to invalidate a prior attachment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The general rule is that where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, such an objection to the attachment proceeding as that insisted on in the case at bar can be successfully made only by the defendant in the attachment suit.”

Synopsis

Attachment—Priority—Insufficient Complaint.—A complaint in an action to subordinate a prior attachment lien of the defendant, to a subsequent attachment lien of the plaintiffs, upon the ground that the affidavit of the defendant that the debt was unsecured, was false, and stating that his suit was for rent, and that he had retained a lien upon personal property in possession of the debtor on the leased premises, but stating no facts from which the court could see that some particular kind of lien did exist on personal property out of possession of the defendant, and not attacking the justness or validity or good faith of the debt to the defendant, does not state a cause of action.

Id.—Confession of Judgment—Bill of Sale.—The fact that the debtor before the issuance of the plaintiff’s attachment confessed judgment to the defendant, upon which an execution was issued and levied upon the property in question, and also gave to the defendant a bill of sale of personal property without a change of'possession, it not appearing that the judgment was confessed for more than was just and legally due, or that the value of the property was greater than the just claim of the defendant, cannot injure the plaintiffs or entitle them to subordinate the prior lien of defendant’s attachment to a subsequent lien of plaintiff ’s attachment.

Id.—Improper Affidavit—Attachment by Bona Fide Creditor.—The general rule is, that where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, an objection to the attachment proceedings on the ground of the impropriety of the affidavit for the attachment, can be successfully made only by the defendant in the attachment suit.

McFarland, J.— A demurrer to the complaint was sustained, and plaintiffs electing not to amend, judgment was entered for defendants. Plaintiffs appeal from the judgment.

It was averred in the complaint that defendant Johnson brought an action against defendant Zetz to recover money alleged to be due from the latter to the former, and in said action caused certain described personal property of Zetz to be attached; and that afterwards plaintiffs brought an action against said Zetz and caused the same property to be attached. The purpose of the present action is to have it decreed that the attachment of plaintiffs, though subsequent in time, is a prior lien to the attachment of Johnson.

There is no averment that the money sued for by Johnson was not justly due and owing to him from Zetz, or that the alleged cause of action in Johnson vZetz, was in any way false or fraudulent; nor is there-[457]any averment that the attachment proceedings in that action were on their face in any way invalid. It is averred, however, that the statement in the affidavit of attachment that “the claim sued upon had not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property” was false; that Johnson has leased certain real property to Zetz; that his suit was against Zetz for rent due upon the lease; and that Johnson did “retain a lien” upon said personal property mentioned in .the complaint for the payment of said rent. (It seems that the personal property was owned by and in the possession of Zetz, and was on the leased premises.) There is no other attack in the complaint on the validity of the said attachment proceedings.

We think that the demurrer was properly sustained. In the first place, as plaintiffs do not attack the justness and validity, either in whole or in part, of Johnson’s cause of action against Zetz, it is doubtful if they could avail themseves of the falsity of the affidavit as to the nonexistence of the lien—even if that falsity were sufficiently averred. We have been referred to no cases in which a junior attachment has been given precedence over a prior one, where the good faith of the debt for which the first attachment issued was admitted. The general rule is that where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, such an objection to the attachment proceeding as that insisted on in the case at bar can be successfully made only by the defendant in the attachment suit. (Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162; Patrick v. Montader, 13 Cal. 435; Harvey v. Foster, 64 Cal. 296; Scrivener v. Dietz, 68 Cal. 1; Drake on Attachment, see. 771.) But if it be admitted that the falsity referred to rendered the Johnson attachment wholly void, so that a stranger could successfully assail it, still there is no sufficient averment of such falsity. The only averment on the subject is that Johnson did “retain a lien” on the said personal property. If there could be any cir

Shea v. Johnson

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