Rudolph v. Saunders

California Supreme Court Feb 3, 1896 No. No. 10379Published

Before: Searls

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Holding. The court held that the constable's attachment of a growing crop was invalid because the return failed to show compliance with the statutory requirements for attaching personal property not capable of manual delivery. Furthermore, the court declined to disturb the trial court's finding that the required notice was never served, given the conflicting evidence.

Issues

Whether a growing crop is personal property not capable of manual delivery requiring specific statutory attachment procedures.
Whether a constable's return that fails to show service of a writ and notice is sufficient to establish a valid attachment.
Whether an appellate court may disturb a trial court's finding of fact based on conflicting testimony regarding the service of an attachment notice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The return of the constable was insufficient to show a valid levy of the attachment.”

“Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder.”

“The finding of the court below is in favor of the plaintiffs, and, in the face of this marked conflict of evidence, we are not at liberty to disturb such finding.”

Synopsis

Growing Crop—Levy op Attachment—Insufficient Return.—A growing crop must be attached as personal property not capable of manual delivery, by leaving with the person in possession thereof a copy of the writ, and a notice that such property is attached, pursuant to subdivision 5 of section 542 of the Code of Civil Procedure, and a constable’s return, of an attachment showing that he attached such crop by taking it into his custody, is insufficient to show a valid levy of the attachment.

Id.—Attachment Proceedings Statutory.—Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder.

Id. —Proof of Levy—Finding—Conflicting Evidence—Appeal.—Where the constable was called to supplement his return by testifying that he served the copy of the writ and notice required by the statute upon the person who was in possession of the growing crop; and such person, on the other hand, testified positively that no notice of attachment whatever was served upon him, a finding, in view of the conflicting evidence, that no notice of attachment was served, will not be disturbed upon appeal.

Id.—Chattel Mortgage—Levy of Execution.—Where a valid chattel mortgage exists upon a growing crop prior to a levy of execution, and there is no valid attachment lien prior to the chattel mortgage to which a sale under execution can relate, there can he no valid levy of execution upon the crop, without paying off the chattel mortgage as provided by section 2969 of the Civil Code.

Searls, C. This action is brought by the plaintiffs, as copartners, to recover from the defendant, as constable of township 5, county of Santa Barbara, five bun-. dred and twenty-one dollars and fifteen cents, and interest, on account of certain beans levied upon by him under and by virtue of execution.

[234]Plaintiffs had judgment for six hundred and one dollars and sixty cents, interest and costs, from which judgment and from an order denying his motion for a new trial defendant appeals.

One James S. McBride was indebted to plaintiffs upon a promissory note in the sum of five hundred and twenty-one dollars and fifteen cents, with interest at twelve per cent per annum from the date thereof, viz., from June 8, 1893, and secured by a chattel mortgage executed by said McBride, under date of June 8, 1893,. and duly recorded June 12, 1893.

On the tenth day of June, 1893, a writ of attachment duly issued out of justice court, in an action therein pending against said mortgagor James S. McBride, which writ of attachment was placed in the hands of the defendant as constable for service, and was by him on said tenth day of June, 1893, either levied or attempted to be levied upon the same property covered by plaintiffs’ chattel mortgage, to wit, upon about thirty acres of growing "beans, upon that portion of the Salsipuedes rancho, known as the “James Wells tract,”' being farmed to beans by said James S. McBride.

If the writ of attachment was properly levied, its lien-was prior to that of plaintiffs’ mortgage, and the judgment should have been for defendant. If not prior to-such mortgage, it became the duty of the defendant as-constable, when thereafter an execution was placed in his hands in the same case, and upon levying on the-mortgaged property, to pay off plaintiffs’ mortgage, as-provided in sections 2968 and 2969 of the Civil Code,, •and having-failed to do so the judgment is proper.

The return to the writ of attachment was as follows:

“I hereby certify that under and by virtue of the-within and hereunto annexed writ of attachment by me received on the tenth day of June, 1893, I did, on the tenth day of June, 1893, attach the following described personal property in the possession of James. McBride: Thirty acres of beans, more or less,- now growing on the Salsipuedes rancho, on the land form[235]

Rudolph v. Saunders

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