Application for a writ of mandate to compel the superior court, on an appeal from a justice's court taken on questions of both law and fact, to review an order of the justice denying petitioner's motion to dissolve a provisional attachment issued at the time the action was begun.
Waiving consideration of two matters which suggest themselves as having a probable bearing on the right of petitioner to the writ, but which are not presented on the application, we think the petition should be denied on the points and authorities presented. The first of the two matters referred to as not considered in what is here said is: The possibility that a showing upon all the record might disclose that the attachment had become merged in the execution, and thus rendered the question involved in the ruling upon the motion to dissolve the attachment a moot question; since, if the personal property attached were now held by the sheriff under an execution regularly entered, it might be urged that this court should not issue its extraordinary writ when it would be idle and ineffective to accomplish the purpose stated on its face, even though it would enable one of the parties to gain some advantage in moving to tax costs. The second matter is, that the refusal of the superior court to review the order dissolving the attachment should, for the purpose of sustaining the court's action, be regarded simply as a denial of the motion to dissolve.
Taking up the application as presented, and we find that petitioner in support of her contention that the order of the justice may be reviewed on an appeal from the judgment, even after final judgment in the appellate court, cites the cases ofGriswold v. Sharpe, 2 Cal. 17, and Taaffe v. Rosenthal, 7 Cal. 515. These cases, as well as that of Reiss v. Brady, 2 Cal. 132, to the same effect, were overruled in Allender
v. Fritts, 24 Cal. 447. From the latter case it appears that the Practice Act, as then in force, contained no provision for an appeal from an order of the district court dissolving or refusing to dissolve an attachment, and it was sought to secure a review of such an order by the supreme court upon an appeal from the judgment, as well as to appeal from the order itself. Sawyer, J., delivering the opinion of the court, says: "This is not an appealable order within the meaning of those sections (Prac. Act, 347, 366), and an appeal, therefore, cannot be taken from it directly as an order; and it is not an order 'involving the merits and necessarily affecting the judgment' within the meaning of section 344. The attachment is merely a proceeding ancillary to the action, by which a party is enabled to acquire a lien for the security of his demand by a levy made before instead of after the entry of a judgment. . . . Neither the action nor the judgment, under our law, in any manner depends upon the attachment, although the attachment depends upon the action. The judgment in the case is precisely the same, whether the attachment is dissolved or not"; it "is not in any respect affected by the attachment. We could neither reverse nor modify the final judgment in any particular in consequence of any error in the attachment proceedings. . . . It is a case for which the Practice Act has made no provision." The Allender case is recognized as authority in Myers v. Mott,29 Cal. 360, 363, [89 Am. Dec. 49], and Herman v. Paris,81 Cal. 625, [22 P. 971]; it being said in the latter case: "The attachment papers in no way affected the validity of the judgment or order denying a new trial, and the questions in relation to them cannot be considered on the appeals taken." There was an appeal from the judgment and from an order refusing a new trial in that case.
In line with this same distinction, Chief Justice Parker observes in Kittredge v. Warren, 14 N.H. 510, 530: "It [the attachment] is originated by the suit, and sustained by the suit, but is not part of it. It can only be made available through a judgment, but the judgment neither changes its nature nor determines its validity; nor does it operate to perfect the attachment. The judgment establishes the existence of the demand upon which the attachment is predicated, and the security taken, whereas, it was before only alleged, and
presupposed for the purpose of the security." Notwithstanding an appeal be taken from its judgment, the trial court (if a court of record) has been held to still retain jurisdiction of the proceedings designated by our code as provisional remedies with power to take such steps therein as may be necessary to preserve the rights of the parties interested therein. (Baughman v. Superior Court, 72 Cal. 572, [14 P. 207];Havemeyer v. Superior Court, 84 Cal. 382, [18 Am. St. Rep. 192, 24 P. 121]; Broder v. Conklin, 121 Cal. 289, [53 P. 797].) So it is said in Elliott on Appellate Procedure that while a general appeal brings up the whole case, the appellant is not necessarily entitled to have all the questions which the papers present reviewed. There is a clear and important distinction between bringing up questions and presenting questions for review. A general appeal removes from the jurisdiction of the trial court all questions concluded by its judgment (section 544), but nothing else.
While we recognize the force of the reasoning upon which the decisions in Bullard v. McArdle, 98 Cal. 359, [35 Am. St. Rep. 176, 33 P. 193], Rossi v. Superior Court, 114 Cal. 371, 374, [46 P. 177], and Maxson v. Superior Court, 124 Cal. 468, [57 P. 379], are based, we are of opinion that the rule as to review of merely ancillary proceedings is the same on the appeal before us as if the appeal were from a judgment of the superior court. This appears to be borne out by the provisions of the code in relation to appeals on questions of fact or law and fact.
When an appeal is taken on questions of both law and fact no statement is or need be prepared (Code Civ. Proc., sec. 976), but the justice certifies and transmits all the papers in the cause, including a copy of his docket, to the superior court (Code Civ. Proc., sec. 977), and the action is tried anew in that court. Section 980 provides when this is done the trial must be conducted in all respects as other trials in the superior court, and all the provisions as to trials in the superior court are made applicable, and the judgment rendered on appeal has the same effect and is enforced in the same manner as if the action had been commenced in the superior court. Where the appeal is heard on a statement, the
court is given power to review certain enumerated orders, but where the statute provides for a new trial as a matter of right, no provisions are made for the review of either intermediate or subsequent orders or rulings. The principal action is, by the appeal, restored to the same position it occupied before the trial as to all matters leading to the judgment, and the superior court tries the case as if there had been no trial in the justice's court.
The attachment proceeding is not a part of every civil action; it is a provisional, independent proceeding initiated by the affidavit (Finch v. McVean, 6 Cal.App. 272, [91 P. 1019]); the basis for the writ is the affidavit (Baldwin v.Napa Wine Co., 137 Cal. 649, [70 P. 732]), and if the transmission of all the papers in a cause to the superior court on appeal be to vest that court with jurisdiction of an attachment proceeding pending in connection therewith, such jurisdiction is not for the purpose of reviewing the rulings of the justice court in connection with the attachment, but as incidental to the execution of the judgment which may be rendered in the principal action. No provision for a review is made by the statute, and whatever other action the superior court may be authorized to take in connection with the attachment proceedings before it by reason of an appeal on questions of both law and fact, in the absence of some statutory authorization to review the rulings of the justice court, we are of opinion that it has no jurisdiction to do so.
The writ, therefore, is denied.