land, also reverses the injunction decree, even if the 9. EFFECT OF A MOTION FOR NEW TRIAL.-The 10. EFFECT OF AN APPEAL.-An appeal from an order dissolving a restraining order does not continue the order.-Hicks vs. Michael, 15 Cal., p. 107. Nor is an injunction dissolved or superseded by an appeal.— Merced Mining Co. vs. Fremont, 7 Cal., p. 130. 533. (§ 119.) If upon such application it satisfactorily appear that there is not sufficient ground for the injunction, it must be dissolved; or if it satisfactorily appear that the extent of the injunction is too great, it must be modified. NOTE.-See note to Sec. 532. When to be modined. vacated or CHAPTER IV. ATTACHMENT. SECTION 537. Attachment, when and in what cases may issue. 538. Affidavit for attachment, what to contain. 539. Undertaking on attachment. 540. Writ, to whom directed and what to state. 541. Shares of stock and debts due defendant, how attached and disposed of. 542. How real and personal property shall be attached. 543. Attorney to give written instructions to Sheriff what to attach. 544. Garnishment, when garnishee liable to plaintiff. 59-VOL. I. Amended 1873-4. Attach ment, when SECTION 545. Citation to garnishee to appear before a Court or Judge. 546. Inventory, how made. Party refusing to give memorandum may be compelled to pay costs. 547. Perishable property, how sold. Accounts without suit to be collected. 548. Property attached may be sold as under execution, if the interests of the parties require. 549. When property claimed by a third party, how tried. 551. When there remains a balance due, how collected. 554. Proceedings to release attachment, before whom taken. what terms. 556. When a motion to discharge attachment may be made, and upon what grounds. 557. When motion made on affidavit, it may be opposed by affidavit. 558. When writ must be discharged. 559. When writ to be returned. 537. (§ 120.) The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless defendant give security to pay such judgment, as in this Chapter provided, in the following cases: 1. In an action upon a contract, express or implied, for the direct payment of money, which contract is made or is payable in this State, and is not secured by mortgage, lien, or pledge upon real or personal property; or, if so secured, that such security has been rendered nugatory by the act of the defendant; 2. In an action upon a contract, express or implied, against a defendant not residing in this State. NOTE.-1. GENERALLY.-The proceedings by attachment are statutory and special, and must be strictly pursued. When a party relies upon his attachment lien as a remedy, he must strictly follow the provisions of the statute.-Roberts & Co. vs. Landecker, 9 Cal., p. 262. The remedy is given only in cases of indebtedness arising upon contract.-Griswold vs. Sharp, 2 Cal., p. 17;, Dutton vs. Shelton, 3 Cal., p. 206. The remedy is not a distinct proceeding in the nature of an action in rem, but is auxiliary to an action at law designed to secure the payment of any judgment the plaintiff may obtain.--Low vs. Adams, 6 Cal., p. 277. An attachment issued on a complaint which was a printed form, with the blanks filled up by the Clerk at the request of plaintiff, but no name was signed to the complaint till next day, and after other attachment on the same property, when it was signed by the Clerk, with the name of plaintiff's attorney. It was held: that the action of the Clerk, though not correct, was only an irregularity, and the complaint was not void.— Dixey vs. Pollock, 8 Cal., p. 570. An attachment, regular upon its face, is not void because the complaint does not state a cause of action warranting the issuance of an attachment.-McComb vs. Reed, 28 Cal., p. 281. An attachment issued before the issuance of the summons is void.--Low vs. Henry, 9 Cal., p. 538. Where G. & Co., concealing their insolvency, obtained an extension from their creditor B., and, before the maturity of the notes, B., apprehending that G. & Co. would fail, and that the other creditors of G. & Co. would exhaust their assets by attachment, obtained, by an arrangement with G. & Co., an antedated note for the amount due him at the date thereof by G. & Co., on which suit was commenced by attachment, and a levy made upon the property of G. & Co. Held: that B.'s attachment and claim was valid against the subsequent attaching creditors, the case not being one of fraud.-Brewster vs. Bours, 8 Cal., p. 501. Where goods were fraudulently purchased by an insolvent, the creditor may attach before the maturity of the debt.-Patrick vs. Montader, 13 Cal., p. 434. An attachment issued upon a debt not due is void as against creditors whose rights are affected by it. Patrick vs. Montader, 13 Cal., p. 434, cited supra, goes upon the ground that the debt on which the attachment issued was equitably due, and hence does not conflict with this rule.--Davis vs. Eppinger, 18 Cal., p. 378. A creditor having a lien by attachment only, may file a creditor's bill.--Conroy vs. Woods, 13 Cal., p. 626. 2. WHEN AN ATTACHMENT CANNOT ISSUE.-If the debt is secured by a vendor's lien, an attachment cannot issue.-Hill ve. Grigsby, 32 Cal., p. 55. But a vendor's lien for the unpaid purchase money of a tract of land, where the land has been conveyed by the vendee to a third party, is not a lien securing the debt within the meaning of the terms used in Sec. 120 of the Practice Act (Code Sec. 537).-Porter vs. Brooks, 66 35 Cal., p. 199. An attachment will not lie when the debt is secured by mortgage.-Kinsey vs. Wallace, 36 Cal., p. 463. The term mortgage" is used in its most general signification and includes a pledge of personal property.-Payne vs. Bensley, 8 Cal., p. 260. 3. PARTNERSHIP, ATTACHMENT AFFECTED BY.An attachment cannot be sued out by one partner against another for any matter touching the partnership affairs.-Wheeler vs. Farmer, 38 Cal., p. 203. The commencement of an action by one partner against his copartners for a dissolution and account, and for an injunction and receiver, and an appointment of a receiver by the Court, does not prevent a creditor from proceeding by attachment and gaining a priority over other creditors, until a final decree of dissolution and order of distribution.--Adams vs. Woods & Haskell, T. A. Lynch et al., Intervenors, 9 Cal., p. 24. Where one partner buys out his copartners, agreeing to pay the debts of the firm, the partnership remains bound for firm debts, and the lien of firm creditors attaching is preferred to the lien of an individual creditor of the remaining partner attaching first.-Conroy vs. Woods, 13 Cal., p. 626. Where two shareholders in a joint stock company sold to the company goods to a large amount, and afterwards, during the existence of the company, sold their stock to A., and assigned their account for such goods to B., who sued such company on said account by attachment, it was held, that the action could not be maintained, there having been no final settlement, no balance struck, and no express promise on the part of the individual members to pay their ascertained portion.-Bullard vs. Kinney, 10 Cal., p. 60. The creditor of an individual partner obtains, by an attachment of the partner's interest, no lien but what is subject to the general lien of partners and creditors.-Robinson vs. Tevis, 38 Cal., p. 611. An attachment against V. may be levied on his interest in grain, and to effect this the Sheriff may take possession of the entire quantity of grain; but he can sell, under the execution on the judg ment that may be recovered in the action, only the undivided interest of V., the purchaser at the sale becoming tenant in common with the other part owners. Bernal vs. Hovious, 17 Cal., p. 541. 4. STOPPAGE IN TRANSITU - ATTACHMENT AS AFFECTED BY.-The right of stoppage in transitu is paramount to any lien by attachment, and may be exercised to defeat such lien by the creditor of the vendee.-Blackman vs. Pierce, 23 Cal., p. 508. Amended 1573-41 5. PRIORITY OF ATTACHMENTS.-Patrick vs. Montador, 13 Cal., p. 434; Speyer vs. Ihmels, 21 Cal., p. 280. The writ affects personal property from the time of the levy only.-Taffts vs. Manlove, 14 Cal., p. 47. In McComb vs. Reed, 28 Cal., p. 281, where two attachments had been levied on the same property, it was questioned whether a junior attaching creditor could successfully attack the validity of the first attachment, on the ground that the complaint did not contain a cause of action upon a contract, express or implied, for the direct payment of money. A junior attaching creditor cannot avail himself, in the affidavit or undertaking, of a prior attaching creditor.-Fridenberg vs. Pierson, 18 Cal., p. 152. 6. THE JUDGMENT-In an attachment suit need not direct a sale of the property held under the attachment-it is the duty of the Sheriff to sell it.-Low vs. Henry, 9 Cal., p. 538. 538. (§ 121.) The Clerk of the Court must issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing: 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs or counter claims,) upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this State, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real and personal property; or, 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter claims,) and that the defendant is a non-resident of the State; and, 3. That the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the defendant. Affidavit for attach to contain. |