Anaheim National Bank v. Kraemer

Plaintiff appeals from an order discharging an attachment in an action on a promissory note executed by defendants.

The notice of motion given by defendants specified that the motion would be made on the grounds that the attachment had been irregularly and improperly issued and levied. By a motion made in pursuance of such a notice, a defendant whose property has been attached is entitled to question the sufficiency of the affidavit upon which the writ issued. (Stanford Hotel Co. v. Schwind Co., 180 Cal. 348 [ 181 Pac. 780 ]; Fairbanks, Morse & Co. v. Getchell Co., 13 Cal. App. 458 [ 110 Pac. 331 ].) It is well settled that if the court’s order can be upheld upon any ground urged an appellate court will not interfere. (Willett & Burr v. Alpert, 181 Cal. 652 , 664 [ 185 Pac. 976 ].) The contention is made that such a ground exists in an alleged defect in the affidavit. That portion of the affidavit material to the present inquiry is in the following language: “That the payment of the same has been secured by a mortgage or lien upon real estate but that the security or lien has become valueless without the act of plaintiff or person to whom security was given.” The alleged defect is said to lie in a failure to have negatived the existence of any security other than that specified. Section 538 of the Code of Civil Procedure as it existed at the time the affidavit herein was made, provides that an affidavit for attachment must show that the payment of the indebtedness for which the

We have been cited to no decision in California where the precise question here considered has been determined. Appellant relies upon Farmers’ State Bank of Starr v. Gray et al., 36 Idaho, 49 [ 210 Pac. 1006 , 1010], in which the Supreme Court of Idaho held that an amended affidavit for attachment which stated that the total security for the note sued upon had without any act of the plaintiff become valueless sufficiently negatived the existence of any security other than that mentioned in the affidavit and complied with the requirements of a statute practically identical with section 538 of the Code of Civil Procedure. But by the use of the word “total” it is obvious, as the court said, that the affidavit negatived the existence of all forms of security mentioned in the statute other than the security mentioned in the affidavit. If, in the affidavit which is under consideration in the instant case, affiant had by appropriate language shown that the mortgage or lien upon real estate was the only security or the total security for the note sued upon the reasoning of the court in the Idaho case would have had direct application. The Idaho court correctly said: “The important fact to be shown by the affidavit is that the plaintiff has no security for his claim.” We may go further and say that the necessary fact which must appear is the lack of security and that this must be indicated by language so clear and unambiguous as to leave it free from any doubt.

It may be observed that the defect which we here hold to be sufficient to sustain the trial court’s order discharging the attachment is a defect which pertains to the form of the averments contained in the affidavit and therefore remediable by amendment. (Corum v. Superior Court, 114 Cal. App. 741 [ 300 Pac. 837 ]; Hamburger v. Halperm, 28 Cal.

The court’s order discharging the attachment is therefore affirmed.

Barnard, P. J., and Maries, J., concurred.