Ballagh v. Williams

DRAPEAU, J. pro tem. In this action to recover a money judgment the plaintiff levied an attachment on the interest of the defendant in and to certain corporate stock. After the judgment in favor of the plaintiff, and before levy of execution, a third party claim to the stock was filed. Upon the hearing of the third party claim, plaintiff’s objection to any evidence "was sustained on the ground that the court had no jurisdiction to determine the merits. From the minute order and judgment of dismissal of the petition of the third party claimant, this appeal is prosecuted.

[304]The claim was presented to the sheriff in accordance with the provisions of section 689, Code of Civil Procedure, on February 2, 1940. The petition was filed February 14, 1940, more than ten days after the delivery of the claim to the officer. The code section provides that the petition must be filed within ten days. Therefore, the court was without jurisdiction to hear the matter.

This appeal must be determined against appellant for another and additional reason. There is no authorization under section 689, Code of Civil Procedure, for the trial of a third party claim where a writ of attachment or execution has been levied upon corporate stock. (Bank of America v. Riggs, 39 Cal. App. (2d) 679 [104 Pac. (2d) 125].)

The judgment is affirmed; the appeal from the minute order is dismissed.

York, P. J., and Doran, J., concurred.

A petition for a rehearing was denied March 28, 1942.