American Machine & Foundry Co. v. Pitchess

The record herein discloses that on October 21, 1966, American Machine and Foundry Co., hereinafter referred to as respondent, filed separate actions in the Superior Court for the County of Los Angeles seeking the recovery or the value of personal property. One of the actions bearing civil number 896163 named Late Corporation and Mango Corporation, appellants here, as defendants. The other .action bearing civil number 896164 named Card Corporation and Hold Corporation, appellants here, as defendants. The property sought to be recovered in action number 896163 consisted of 32 pinspotting machines and

On October 28, 1966, Late Corporation and Mango Corporation filed their answer to the complaint in action number 896163, and on the same date Card Corporation and Hold Corporation filed their answer to the complaint in action number 896.164. Subsequent to October 28, 1966, the sheriff refused to take the property claimed in each action on the ground that he had no duty or authority to execute claim and delivery process at any time after the filing of an answer by the defendants.

Following the sheriff’s refusal to take the property into his possession, respondent filed its petition for'writ of mandate to compel the sheriff to take the property and retain it in his custody pursuant to the instructions theretofore delivered to him by respondent. After hearing the trial court rendered judgment directing that a peremptory writ of mandate be issued requiring the sheriff to take the property described in the two actions pursuant to the provisions of sections 509 through 512 of the Code of Civil Procedure and pursuant to the instructions of respondent theretofore given in said actions, and to deliver such property to the respondent. Thereafter, Late, Mango, Card and Hold Corporations, who were not made parties to the mandate proceedings, filed their motion to vacate the judgment on the grounds that they were the real parties in interest and that they were aggrieved by the judgment. The motion to vacate the judgment was denied. The appeal is from the judgment and from the ordér denying ■ the motion to vacate the judgment. .

The question involves the interpretation to-be..placed■ on the-language contained' in section 509 of the Code-of Civil- Froee

We are of the opinion that a plaintiff has claimed the delivery of personal property within the meaning of the provisions of chapter 2, part 2, title 7 (§§ 509-521) of the Code of Civil Procedure when he has made the affidavit required by section 510 thereof; has indorsed the affidavit as required by section 511 thereof; has obtained the written undertaking as required by section 512 thereof, and has delivered these documents to the officer charged with the duty of taking possession of the personal property at any time before the filing of the answer, and that the filing of the answer after such delivery and before the officer takes physical possession or exercises dominion and control over the property does not preclude the officer from taking the property under the mandate of section 512 of the Code of Civil Procedure. To hold otherwise would sanction the destruction of plaintiff’s right to the provisional remedy afforded him by the law in such cases where the officer charged with the duty to seize the property, for whatever reason connected with the conduct of his office, was unable to forthwith take the property, or where from dilatory tactics on his part he failed to act forthwith, before answer. To hold otherwise would also permit a defendant, who had knowledge of the claim for delivery, to sequester the property for a sufficient time to enable him to file his answer before seizure and thus, by his fraud, defeat the plaintiff’s right to the provisional remedy.

The judgment and the order denying the motion to vacate the judgment are affirmed.

Cobey, Acting P. J., and Moss, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied July 24,1968.