Brunswick Corp. v. O'Connor

BROWN (Gerald), P. J. Brunswick filed a complaint at 2:11 p.m. on September 29, 1967 in the San Diego Superior Court to recover possession of bowling equipment, immediately gave the sheriff an affidavit, undertaking and endorsement for claim and delivery, under Code of Civil Procedure, sections 510-512, and directed the sheriff to take possession of the equipment. Appellants filed an answer to the complaint at 4:47 pm. that afternoon, before the sheriff seized the equipment.

When the sheriff refused to take possession of the equipment Brunswick brought this mandamus proceeding requiring him to do so. From a judgment favoring Brunswick the intervening parties in possession of the bowling equipment have appealed.

The sole issue involves the meaning of Code of Civil Procedure, section 509, particularly the words “claim the delivery,” which provides: “The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter.” (Italics added.)

[712]To be effective before answer, does “claim the delivery” require the sheriff to actually seize or take possession of personal property, as contended by appellants ? Or is it sufficient, as contended by Brunswick, to have the necessary papers placed with the sheriff? We hold Brunswick’s contention is correct. Brunswick claimed the delivery of the equipment before appellants answered. The superior court, therefore, properly entered judgment requiring the sheriff to take possession of the equipment.

That claim the delivery is different from and does not encompass seizure or taking possession is apparent when viewed in the context of the entire chapter on “Claim and Delivery of Personal Property” in the Code of Civil Procedure. Section 510 provides for the content of the affidavit “Where a delivery is claimed.” Sections 511 and 512 provide for ‘ ‘ seizure of claimed property ’ ’; after the plaintiff claims delivery, the “officer must forthwith take the property . . . and retain it in his custody.” Section 514 provides for “delivery of the property to the plaintiff” and the method by which a defendant may obtain its return; section 518 also provides for custody of property seized and delivery to the party entitled to it.

The trial court reasoned: section 509 provides the plaintiff may at the time of issuing the summons claim the delivery of the property; if “claim the delivery” means, as contended by appellants, the actual seizure of the property by the sheriff, this could not be done “at the time of issuing the summons,” and that portion of the statute would be rendered meaningless.