P.2d *1 921] F. No. 18871. In Bank. Dec. [S. 1953.] Respondent, HENRY LILY ZELLER HENDERSON, K. Appellant. DRAKE, BACH (D *2 Tulley Goldstein
Erskine, Erskine & and J. Oscar Appellant. Respondent.
H. W. Glensor denying SCHAUER, Defendant appeals from an J. only ground of her motion to dissolve an attachment. in favor rendered motion was “that had been defendant and no notice of from and after appeal had been filed question for decision judgment.” of said The sole have denying is the correctness of the order such motion. We of the Code of concluded that under 553 and 946 sections upon based, trial Procedure, Civil which the motion was required .deny court was it. against
In this action certain attached corporate Thereafter, shares of stock owned defendant. *3 26, judgment on November for 1951, defendant was entered in entry judgment that action. No formal notice of written given plaintiff. appeal No was taken but on December served and filed notice of intention to move for a new trial. On served and January 3, defendant filed notice of motion dissolve On Jan- uary 28, 1952, plaintiff’s motion for a new trial was February 6, On 1952, defendant’s motion to dissolve the denied; attachment was on this date neither the for an time appeal by defendant from the order the new trial nor, in the event defendant took for appeal, such a cross- appeal by plaintiff expired. provides 553 of the Code Civil Procedure in
Section part, judgment against “If the defendant recovers material appeal perfected undertaking no is plaintiff, and and provided filed in code, and as section 946 of executed this property . must all the attached . . be delivered to the ... agent, discharged, or his the order attachment be defendant property provides and the released therefrom.” Section part, appeal “An in in material does not continue force an attachment, undertaking an be unless executed and filed on appellant part days of the . . and unless, . five within appealed from, entry notice of the order
after written appeal perfected.” such be wording of those sections it is clear that
Under the may preserved by taking appeal an and an attachment be judg- that an remains effective after rendition of attachment longer until ment there is no given, which unless written notice of is appeal perfected days five event the must be subject discharge. such notice or the attachment becomes Section 553 that if defendant recovers states filed, appeal undertaking and no then the is taken and no discharged.” This “order of attachment be neces- [must] sarily implies appeal perfected if an undertak- an is and discharged. ing not filed, then the attachment should be appeal Similarly, section 946 states that an does not undertaking” in force an “continue unless “unless, is filed within five after written and, from,” appeal,is appealed of the order filing perfected. necessarily implies of the This undertaking appeal perfection and the will only reference attachment alive. The to time contained appeal 946 that the the sections is of section days after be “within five written from.” there- reasonable, It is remains effective fore, to conclude that as long may as an be taken unless written notice of given, perdures in which event the only per- after such notice unless an If sections and 946 fected within that time. were not construed, plaintiff would have to file his so at the same time for defend- entered, ant was or the mere for defendant discharge the attachment. would Superior Primm Court
As is held “finally attachment is App. 786], irrevocably for defendant dissolved the moment fair, reasonable, A unstrained construction is entered. ... *4 leads to 553 and the conclusion that sections 946] [of judgment a is neutralized force of a dissolvent provided additional is filed and the appeal, specified within the This appeal perfected time. construction both nullify effect to sections and does gives harmonious not also, (See, Surety Morneault v. National any part of either.”- Cal.App. 285, ; 286 P. v. (1918), 37 Clark Su- [174 81] Co.
5 681]; Cal.App. 732, 734 perior (1918), [174 Court 37 Cal.App. 84 (1948), Indem. Falls Co. v. Glens Albertsworth Deposit Fidelity & Co. 66]; Davis v. 819 P.2d 816, 2d [192 414].) P.2d Cal.App.2d 13, (1949), 93 [208 the notice expired when appeal had not The time to January 3, filed on the attachment was of motion to dissolve Feb- on such motion court denied 1952, or when the trial of entry days from the had 60 ruary 1952. Plaintiff 6, file 1951) in which to (i. 26, e., from November 2(a)), when (Rules Appeal, rule on notice of a new to move for of intention he served and filed his notice Appeal, (Rules on extended trial the time for was motion to dis- court denied the 3(a)). rule When the trial a new trial attachment, plaintiff’s motion for solve the on granted. Regardless lack of effect been of the effect or trial, a new the attachment of the order the attach- at the time of the of her motion to dissolve denial granting the new appealed from ment could have from plaintiff trial and, so, had she done could have 3(a)). Therefore, on (Rules Appeal, rule February opportunity 6, 1952, there was still an undertaking, file an in that manner correctly alive the and the trial court refused to order that the attachment be dissolved. entry of Novem of of the no written notice
Since in section referred to 1951, given, the ber although urges that she did Defendant 946 did not run. and thus start give formal com five-day period, there was substantial running of the “written of section pliance with the says motion to that her notice of given. be She notice” was, effect, a notice dissolve plaintiff’s notice of motion for a new judgment, and that judg a waiver of written trial constituted statutory requirement of is true “writ ment. It waived, can and that be ten notice” filing, it has been held that some circumstances notice, such written document disclos party entitled to knowledge ing his actual shows (Prothero Superior written notice. Court waiver 357].) But (1925), relinquishment right. of a the intentional known waiver is Mota Cal.2d P.2d (Roesch v. De The fact here evidenced his actual *5 6
knowledge he of does not show that intended to his thereof waive to receive written notice five-day the purpose period starting running Hughes within he (See which could save Mfg. 17].) v. Elliott etc. Co. Cal. incidentally And fact that defendant to indicated by serving filing plaintiff, her and notice motion to dissolve that had been entered is not suffi compliance statutory cient with the that written given running five-day period. notice be to start (See Byrne Hudson (1899), Cal. For the reasons above stated the order from is affirmed.
Gibson, J., J., Shenk, J., C. Edmonds, Spence, J., and concurred.
CARTER, J.I dissent. By process legal legerdemain majority skillful opinion attempts bring to to life an died attachment which a natural on January 28, 1952, death when granted by new trial was the trial court. by majority pursuant
It conceded that to sections 553 and 946 of of Civil Code Procedure is dissolved when rendered favor of the de- perfects fendant unless he an appeal gives and an under- taking within five receiving after kept by that proceedings it is not alive on motion for a new trial.
In light of this concession let examine us the record: (1) Judgment November 1951. for defendant entered. (2) December 1951. Plaintiff served and filed notice of intention to move for a statutory new trial on all grounds.
(3) January 3, 1952. Defendant served and filed notice to dissolve attachment.
(4) January 28, 1952. Motion for new trial (5) February 6, 1952. Motion to dissolve attachment denied.
(6) agreed statement on states: “No ever Henry has been taken K. Henderson [defendant] judgment. from No said filed Henry K. Henderson of said any other at time.” It is true no that notice judgment was formal of intention plaintiff’s notice given by defendant, but both of motion notice move for a new trial and defendant’s “the the attachment refer to to dissolve heretofore action.” It seems made entered the above entitled breaking point legalism stretching me it is adequate not have record, this did say, view of not, conceding he did judgment. But appeal from and that his time to *6 expire until five after give did appeal expired, given, his time for had such notice was or question right appeal, or lost his to there can be no that January 28th, 1952, latter occurred on when his the event granted. for new This event terminated motion a trial was right appeal to as it is well settled that an does from an unconditional order or in favor not lie appeal appellant (3 and such an must be Cal. the dismissed p. 566). plaintiff The fact that could have Jur.2d § cross-appealed appealed from the if defendant had granting trial, question, from the order the new is beside the appeal granting plaintiff’s as defendant did not the order for a new trial become final. motion has There can be no question plaintiff’s right appeal that to granted. was lost when his motion for a trial new was Con- ceding plaintiff right cross-appeal that would have had a to from if appealed the defendant had from the order granting trial, the new since appeal defendant did not from plaintiff’s right order, cross-appeal said to never came into existence. denying defendant’s motion to
The order
dissolve the at-
February 6,
1952, nine
tachment was entered
the
granted.
trial was
for a new
At that time
motion
comply
requirements
could not
with the
had not and
of sec-
946 of the Code of Civil Procedure,
tions 553 and
and the
should, therefore,
the attachment
motion to dissolve
have been
reasoning
accepting
unsound
of majority,
that
Even
motion to dissolve
defendant’s
at the time
attachment
appeal
plaintiff’s time to
had not
denied,
expired, because
was
cross-appeal
if
he had the
to
defendant
from
granting
trial, and, therefore,
the new
the order
the motion
properly denied,
nothing,
it will avail
as the
now be dissolved because
must
attachment
non-
provisions
compliance with
sections 553 and 946 of
Code of Civil Procedure.
construing
them
last cited code sections and decisions
trial
pendency
make it clear
of motion for a new
a
stay
operate
or
that motion does not
extinguishment
con
of an
an attachment
tinues in force until
the motion
is determined. While
Legislature
keeping
provide
saw fit to
for
plaintiff,
appears
event
and there
alive
why
provision
they
to be no reason
make a similar
did not
trial,
in case of a
for
pending motion
a new
the fact remains
553, supra, requires
(except
that section
without limitation
appeal)
ease
in the
when
recovers
defendant
discharged. Nothing
the attachment must be
is said about a
new trial and I know of
other
no
statute which
pendency
operate
makes
a
keep
of such motion
provision
no
giving
attachment alive. There is
taking
an under
keep the
when
force
a motion for a
new trial is made as
there when an
is taken. The
undertaking in the
give
case of an
protection
to the
addition to that afforded
the under
taking
(Albertsworth
to obtain the attachment.
Falls
Glens
Co., Cal.App.2d
Indem.
P.2d
The absence
provision
protection
for such
pending
dispo
added
sition
a motion for a new trial indicates
pendency
that the
such motion does not
the attachment alive.
It has
*7
been held
a
that motion for a new trial
does not
itself
stay the execution of
judgment by
prevailing
the
party.
the
(.People Loucks,
68;
v.
28 Cal.
Spears,
163;
Jones v.
Barnhart,
Harris v.
97
546
; Kokole
Cal.
P.
Su
v.
[32
589]
perior Court, 17
454
Cal.App.
P.
; Knowles v.
[120
67]
Thompson,
;
This is unfortunate in view the overcrowded condition of our court policy calendars. also It violates the of our courts to decide litigation cases so as to terminate wherever possible in the justice. interests of
For foregoing reasons, I would reverse the order. TRAYNOR, J. I dissent. my opinion
It is had written notice of the meaning of section 946 of the Code of Civil Procedure preserve that his taking an appeal was therefore lost five after the service of the notice.
Judgment for defendant was entered
26,
on November
1951.
4, 1951,
On December
served and filed
intention to move for a new trial,
January
and on
defendant served and filed notice of motion to vacate the
ground
“judgment
attachment on
had been rendered
in favor of the
appeal
defendant and no notice of
or under-
taking
on
been filed within five
from and
judgment.”
after the
of said
At no time thereafter
plaintiff perfect
did
judgment.
Defend-
February
ant’s motion was
denied
for a new trial
had been
Section 946 of the
provides
Code of Civil Procedure
may
that an attachment
in force
be continued
if an
“within five
*8
days
entry
after written notice of the
of the
from.” Whether or not
notice of motion for a
new trial constituted a
right
waiver of the
to written (see
Superior
v.
Court,
Prothero
[L. 1954.] Appellant, v. BEYERBACH, CHARLES JUNO OIL COM (a Corporation) Respondents. PANY al., et