241 P. 86 | Cal. | 1925
Plaintiff having commenced an action in the superior court on a money demand against the defendants sounding in contract procured a writ of attachment to be regularly issued and levied upon real property belonging to the defendants November 16, 1922. Thereafter in due course a judgment was rendered and docketed in favor of the plaintiff and against the defendants. Defendants perfected an appeal to this court from the judgment and in connection therewith gave and filed a supersedeas bond adequate to stay the execution of the judgment. The statutory limitation upon the attachment lien being about to expire under the terms of section 542a of the Code of Civil Procedure, the plaintiff moved in this court upon notice pursuant to the provisions of said section for an order extending the time of said lien for a period of two years from the date on which the original lien would expire.
We are confronted at the outset with the question which we ourselves suggested at the hearing of the motion, namely, *441 whether or not this court is the proper forum to which this motion should be directed. Appellants in resisting the motion have contented themselves with expressing a doubt as to this question, but have not aided us with either reasoning or authority to aid in its solution. The code section provides that: "The attachment . . . shall be a lien upon all property attached for a period of three years after the date of levy unless sooner released or discharged as provided in this chapter, by dismissal of the action or by entry and docketing of judgment in the action. At the expiration of three years the lien shall cease and any proceeding or proceedings against the property shall be barred; provided, that upon motion of a party to the action, made not less than five nor more than sixty days before the expiration of said period of three years, the court in which the action is pending may extend the time of said lien. . . ." It must be conceded that the action is not pending in this court in the sense that there is before us upon review any claimed error relating directly to the attachment proceedings. Such error, if any, should have been reviewed in a separate appeal from an order dissolving or refusing to dissolve the attachment (Code Civ. Proc. 963) and is not reviewable upon an appeal from the judgment (Code Civ. Proc. 956; 3 Cal. Jur. 480). On the other hand it is equally true that upon the rendition and docketing of the judgment in favor of plaintiff the attachment lien became merged in the lien of the judgment at least to some extent and for some purposes and the validity of the judgment is the precise matter which is now pending in this court for review upon appeal No appeal appears to have been taken from any of the attachment proceedings herein and all matters now in controversy between the parties are pending before this court for determination. The shortness of time within which we must act upon this motion in order that our action may be effective precludes us from giving such consideration to this question as we would desire. For this reason, and for the further reason that we are satisfied that the motion must, in any event, be denied, we shall assume for the purposes hereof that the action is pending in this court within the purview of the phrase used in the code section above quoted, and that the motion is properly addressed to this court. *442
Both parties herein agree that the attachment lien has become merged in the judgment lien, but we are not prepared to give unqualified assent to this conclusion. It is undoubtedly true that upon the rendition and docketing of a judgment in favor of plaintiff in an action wherein a writ of attachment has been duly issued and levied upon real property, the attachment lien merges in the judgment lien in the sense and to the extent that there cannot then be said to be two separate and distinct liens subsisting against the same property, one arising out of the attachment and the other arising out of the judgment. It was so held in Bagley v. Ward,
Lawlor, J., Waste, J., Richards, J., Seawell, J., Lennon, J., and Shenk, J., concurred.