Michael v. Burge

SCHOTTKY, J. This is an appeal by third party claimants from an order denying their third party claims.

Charles Michael brought an action against Edward Burge as an individual, Modesto Farms, Inc., a corporation, and Modesto Land and Cattle Company, a corporation, for sums allegedly due on four open-book accounts. Thereafter one Bonanza aircraft registered in the name of Edward Burge, Inc., and a Cadillac automobile and a Thunderbird automobile registered in the name of Burge’s Drive In, Inc., were attached. After the property was attached, Burge’s Drive In, Inc., and Edward Burge, Inc., on October 25, 1956, filed third party claims under the provisions of section 689 of the Code of Civil Procedure, and on November 2, 1956, petitioned the court to determine title to the property. Michael bonded against the third party claims. The court set November 15, 1956, as the time for a hearing on these petitions, and thereafter continued the date of the hearing. Exceptions to the sureties of Michael were filed. The record does not disclose whether or not the sureties ever qualified. On November 14, 1956, the third party claimants filed a motion for vacation of the attachments based on the fact that the sureties failed to qualify. On November 21, 1956, while this motion was pending, the third party claimants dismissed their petitions to determine title to the attached property. Later the same day Michael filed his petition for a hearing on the claim of the third parties to determine title.

Thereafter a hearing was held on the motion to dismiss the petitions to determine title. The trial court at the conclusion of the matter denied the third party claimants’ motion to vacate the attachments and held that the objections of the third party claimants to the jurisdiction of the court to hear Michael’s petition to determine title be overruled; that the property attached be returned to the third party claimants; and that they be restrained from disposing of the property until the determination of Michael’s petition. Then Michael’s petition to determine title was heard. At its conclusion the trial court denied the claims of the third parties. In its decision the court held that the attached property, though standing in the names of the corporations, was in fact the property of Edward Burge himself.

Appellants’ first contention is that the trial court [130]erred in failing to vacate the attachments after respondent’s sureties failed to justify. This question may not be reviewed. An order refusing to vacate an attachment is an appealable order. (Code Civ. Proc., § 963.) Ordinarily an order refusing to vacate an attachment may not be reviewed on appeal from the judgment in the principal matter. (Title Guarantee & Trust Co. v. Stahler, 15 Cal.App.2d 239 [59 P.2d 515].) By its order of December 12, 1956, the court refused to vacate the attachment of the appellants’ property. They could have appealed from that order, but not having done so they are not entitled to have it reviewed under the present appeal.