Low v. Adams , 1856 Cal. LEXIS 124 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

This is an appeal from an order of the Court below, denying a motion to set aside an execution, levy, and sale.

The plaintiffs brought an action of assumpsit against Adams and Parrish, and sued out an attachment. After the execution of the writ, the property seized was released, the defendant giving bond, under the provisions of the Act. The plaintiffs obtained a judgment, which was affirmed by this Court. Execution was issued from the Court below, was levied, and the property sold. After the expiration of the time of redemption, Adams, one of the defendants, filed his motion to quash the proceedings, on the ground of informality.

The first error assigned is, that the remedy by attachment is a proceeding in rem, and the plaintiff must look to the bond, which, it is contended, releases the attached property, and is substituted instead thereof by the statute. This is not the case. The remedy by attachment is not a distinct proceeding, in the nature of an action in rem, but is an adjunct, or a proceeding auxiliary to the action at law, designed for the purpose of securing the property of the debtor, to answer the judgment which may be obtained. This is apparent from the language of the statute, which provides “ that the plaintiff, at the time of issuing the summons, or at any time thereafter, may have the property of the defendant attached, as security for the judgment,” etc. (Sec. 120, Prac. Act.) That the bond only operated to release the property from the custody of the sheriff, pending the suit, and was not an actual substitution of security, is apparent from the one hundred and thirty-fourth section of the Practice Act, which provides that the plaintiff may proceed upon undertaking, if the execution is returned unsatisfied.

The second point, that the appeal bond operated a release of the lien acquired by docketing the judgment in the Court below, is not well taken. The appeal only stayed the execution, and did not impair the lien.

The third error assigned is, that the judgment was not properly docketed. The record shows, at least so far as Adams, the party now before the Court, is concerned, the proceeding was regular in all its parts. In fact, we do not see how the objection would avail the defendant, even were it true, in point of fact, that the judgment had never been docketed. It was either his, or it was not, at the time.of the levy. If it was, the levy operated as a lien; if not his property, then he has no right to complain.

The fourth and fifth points are not well taken. The execution for costs became a lien, from the date of the levy, and was issued in strict conformity with the provisions of the statute.

To the sixth and seventh errors assigned, it is only necessary to say that the record does not show that the property levied on was not joint; that if it was not, it would make no difference under our statute, so far as the defendants are concerned, both of whom were served; and that the time in which a sheriff makes his return to an execution, has nothing to do with the validity of the execution, or of a sale under it.

Judgment affirmed.