108 P. 320 | Cal. | 1910
Appeal by defendant from an order of the superior court of San Diego County denying his motion to dissolve an attachment. The complaint in the action was in nineteen counts, each of which set up a cause of action for services or material furnished and used in the construction of the yacht "Yankee Girl," owned by the defendant, Dorr. The total sum demanded was $4,001.76, for which plaintiff claimed a lien upon said vessel under the terms of section 813 of the Code of Civil Procedure. Upon the filing of the complaint, the plaintiff filed an affidavit, in the form prescribed by section 538 of the said code, averring, among other things, that the payment of the contract in suit "has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property." At the same time an undertaking on attachment in the sum of five hundred dollars was filed. Thereupon a writ of attachment, in the form prescribed by section 540, was issued out of said court to the sheriff of Los Angeles County, and said sheriff made return that he had attached the yacht "Yankee Girl" with its tackle, apparel, and furniture. *439
Thereafter the defendant moved the court to dissolve and discharge the attachment upon the grounds: 1. That the attachment was improperly issued in that the contracts sued upon are alleged in the complaint to be secured by a lien upon personal property; 2. That the attachment was irregularly issued in that the affidavit is false in the statement that the amount sought to be recovered had not been secured by any lien upon personal property; and 3. That the writ was irregularly issued in that it did not direct the sheriff to attach the vessel "Yankee Girl," with its tackle, apparel, and furniture, as provided in section 819 of the Code of Civil Procedure. The motion, as already stated, was denied, and the defendant appeals.
Under subdivision 1 of section 537 of the Code of Civil Procedure, an attachment can issue in an action against a resident defendant only where the debt is unsecured by lien, mortgage, or pledge, or where the security has become valueless. The requisite fact must appear by affidavit (sec. 538). The first and second grounds of the motion to dissolve are based upon the proposition that the plaintiff's demand was, by virtue of section 813 of the Code of Civil Procedure, secured by a lien upon the vessel, such lien being antecedent to and independent of any seizure. (The Great West v. Oberndorf,
But the very reasons which lead us to hold that the first and second grounds of defendant's motion are without merit, force the conclusion that the third ground was well taken, and should have been sustained. As respondent must concede, the general attachment law did not authorize an attachment in this case, and the issuance of the writ can be supported only as a proceeding under the statutory provisions regarding claims against vessels. It was essential therefore, that the steps taken should have been in substantial compliance with the terms of these provisions. Proceedings for attachment, whether in ordinary cases or in actions to enforce liens against vessels, are created by statute, and must, in each of such classes of cases follow the terms of the law governing that class. (Edwards v. Cooper,
Where the attachment is sought in aid of an action to foreclose a lien upon a vessel, the code requirement is that the writ "must be directed to the sheriff of the county within which the steamer, vessel, or boat lies, and direct him to *441 attach such steamer, vessel, or boat, with its tackle, apparel, and furniture, and keep the same in his custody until discharged in due course of law." (Code Civ. Proc., sec. 819) It is a special writ which gives authority to seize specific property only. The writ here issued, however, followed the terms of the general attachment law (Code Civ. Proc., sec. 540) and directed the sheriff "to attach and safely keep all the property of said defendant Dorr . . . within your said county, or so much thereof as may be sufficient to satisfy the said plaintiff's demand . . ." This was essentially different from the writ to which plaintiff was entitled under the vessels statute. In place of process authorizing a seizure of the yacht "Yankee Girl" alone, the sheriff was armed with a writ empowering him to seize any property of the defendant, and this in a case in which, under the averments of the complaint, a general attachment could not issue.
It is of no consequence that the sheriff did not, in fact, levy on any property other than the vessel. Under section 823, attachments on vessels may, on motion, be discharged in the same manner, and on like terms and conditions, as attachments in other cases. Sections 556 and 558, thus imported into the procedure for enforcing liens against vessels, provide that a writ of attachment must be discharged, if upon motion, made before or after levy, it appears that the writ was improperly or irregularly issued. "Under these sections it is immaterial whether much or little or any property of a defendant has been actually levied upon, but the court must, upon proper application therefor, discharge the writ of attachment thus wrongfully issued." (Kennedy v. California Sav. Bank,
By a proviso recently added to section 558 (Stats 1909, p. 253), a motion to discharge for irregularity may now be met by proper amendment of the affidavit, undertaking, or writ. But this enactment was not in force when the motion in the present case was made, and, besides, it does not appear that plaintiff made any attempt to correct the defective writ.
The order is reversed.
Angellotti, J., Shaw, J., Melvin, J., Lorigan, J., and Henshaw, J., concurred. *442
