Retailers' Credit Ass'n v. Superior Court

THOMPSON, J. The Retailers' Credit Association of Sacramento, a corporation, has petitioned this court for a writ of mandamus to require the Superior Court of Glenn County to determine the title to personal property which was attached in a suit in assumpsit pending in that superior court between this petitioner, as plaintiff and Charles A. Nock et al., as defendants. The suit in assumpsit was originally filed in Sacramento County. The property was delivered to the defendants pursuant to separate third party claims to the personal property which were filed as authorized by sections 549 and 689 of the Code of Civil Procedure. Upon motion therefor the cause was subsequently transferred on September 11, 1936, to Glenn County. Prior to the order for the change of the place of trial this petitioner filed with the Superior Court of Sacramento County its petition under the provisions of section 689 of the Code of Civil Procedure to determine the title to the personal property. The hearing upon the third parties’ claims was set for September 4th, but it was subsequently continued to September 11th. On the last-mentioned date, the third parties appeared before the Sacramento court and objected to the hearing of the proceeding to determine the title to their claims on the ground that the Sacramento court was without jurisdiction to do so on account of the pending motion for a change of venue. The objection was sustained. The petition to determine title to the personal property was then continued to October 5, 1936, and the cause was transferred to Glenn County. The order transferring the cause “directed that all papers filed in the above mentioned action be forthwith sent to the Superior Court ... in and for the County of .Glenn”, which was done. On September 20th the documents and proceedings were filed in Glenn County. On September 29th, by consent of all parties the proceeding to determine title to the personal property was continued to October 23d. On the last-mentioned date the petition to determine the title to the personal property was fully heard. Oral and documentary evidence was adduced by respective parties, and [459]the matter was submitted to the court for decision. November 16, 1936, the court determined that it was without jurisdiction to pass upon the merits of the third parties’ claims, and it declined to do so. This petition for a writ of mandamus was then filed seeking for an order to require the Superior Court of Glenn County to determine that issue. The facts are not disputed.

The respondent contends that the petition to determine title to property under attachment which is claimed by strangers to the suit under the provisions of section 549 of the Code of Civil Procedure is a proceeding in the nature of a creditor’s bill such as is referred to in section 720 of the Code of Civil Procedure, separate and distinct from the suit in assumpsit in which the original attachment was issued and that the Sacramento court had no authority to transfer the proceeding to determine title to any other court according to the provisions of section 689 of the Code of Civil Procedure and that the Glenn County court therefore had no jurisdiction to hear or determine that matter. It is claimed that the nature of the proceedings to determine the title to property claimed by strangers to an action as provided by the terms of sections 689 and 720 of the Code of Civil Procedure are exactly the same.