In O'Connor v. Blake, 29 Cal. 312, this Court held that a former judgment was no bar, because the parties were not the same, and that a former lis pendens was available only when the plaintiff, at least, in both actions, was the same.Summary of this case from Wheelock v. Warschauer
Appeal from the District Court, Fourth Judicial District, city and county of San Francisco.
In the case of Otis v. Barrett, the Constable, in his return on the attachment, stated that he had attached the right, title, and interest of the defendant in the property, the same being then in his possession. The plaintiff appealed from the judgment, and from an order denying a new trial.
Eugene B. Drake, for Appellant, on the question of the officer's levy under the Otis attachment, cited Taffts v. Manlove, 14 Cal. 51, and Westervelt v. Pinkney, 14 Wend. 123; and on the question of the dismissal of the action dissolving the attachment, cited 9 Johns. 140, and 5 Hill, 420.
P. G. Buchan, for Respondent.
JUDGES: Sanderson, C. J. Mr. Justice Rhodes expressed no opinion.
Action against a Constable to recover the possession of personal property taken by him under an attachment. Trial by the Court, judgment for defendant, and new trial denied. The defendant's answer contains three separate and distinct defences. First--That the property in question belonged to one Stuart, and that the defendant held the same by virtue of an attachment against Stuart, at the suit of Heywood & Harmon. Second--That there was a former suit pending between one Barrett, plaintiff's vendor, and defendant, to recover the same goods. Third--That the goods were the property of said Barrett, and the defendant held the same under an attachment against Barrett, at the suit of one Otis.
At the trial, the plaintiff proved a prima facie case, and rested. The question submitted to us, broadly stated, is whether at the trial the defendant sustained either of his defences.
He failed to sustain his first defence, because he failed to offer any evidence of title to the goods in Stuart at the date of the levy of the Heywood & Harmon attachment.
When another action pending is a bar .
He also failed to sustain his second defence, because the pendency of a former suit by Barrett, the plaintiff's vendor, was no bar to this action. The defence of a prior lis pendens is available only where the plaintiff at least, in both actions, is the same person. ( Certain Logs of Mahogany, 2 Sum. 593; Wadleigh v. Veazie, 3 Sum. 165.)
Attachment issued out of Justice's Court, and levy of .
Against the right of the defendant to hold the goods under the Otis attachment, which was levied (if levied at all) prior to the sale from Barrett to plaintiff, three grounds are urged by appellant: First, that Otis v. Barrett was not a case in which a Justice of the Peace could lawfully issue an attachment; second, if it was such a case, the attachment was never issued according to law; and, third, if it was lawfully levied, the lien thereunder was lost by reason of the subsequent dismissal of the action, notwithstanding such dismissal was afterwards set aside and a new trial granted, at which the plaintiff recovered a judgment. The cause of action in Otis v. Barrett was a promissory note, payable on demand, and bearing date on the 27th of May, 1856, and renewed by Barrett on the 17th of April, 1860.
This contract having been made prior to the 28th day of April, 1860, the date of the last amendment of the five hundred and fifty-first section of the Practice Act concerning attachments in Justices' Courts, it is claimed that no attachment could issue thereon because the words " made after the passage of this act" limit the right to an attachment to contracts made after the 28th day of April, 1860, which view is manifestly untenable.
That portion of section five hundred and fifty-one which defines the contracts upon which attachments may be had, is now and always has been the same since the Practice Act was passed, on the 29th day of April, 1851. In that respect no change was made by the amendatory Act of the 28th of April, 1860. Hence the words " this act" obviously refer to the Practice Act of 1851, and not to the amendatory Act of 1860.
Levy of an attachment .
The second point, to the effect that there was no valid levy of the Otis attachment, is also untenable in our judgment. The property was already in the possession of the defendant under the Heywood & Harman attachment. It was therefore unnecessary to make a seizure under the Otis attachment, nor was it possible for the defendant to make a second taking of that which he had already taken and still retained in his possession. All therefore which he was called upon to do in order to effect a valid levy, was to so return upon the back of the attachment, which was done, we think, substantially in conformity with the statute. ( Ritter v. Scannell, 11 Cal. 238.)
Lien of an attachment ceases on dismissal of suit .
We are inclined to think, however, that the third point, to the effect that the lien under the attachment ceased upon the dismissal of the action in which it was issued, is well put. The one hundred and thirty-fifth section of the Practice Act, which is made applicable to Justices' as well as District Courts, provides that if the defendant recover judgment, all property attached, etc., remaining in the hands of the Sheriff shall be delivered to the defendant, and the attachment shall be discharged and the property released therefrom. In case of a dismissal of a suit for non-appearance of the plaintiff, it must be held that the judgment for the defendant ipso facto operates as a dissolution of the attachment. We find no provision authorizing a Justice of the Peace to vacate a judgment and reinstate the cause after a judgment of dismissal on the ground of the non-appearance of the plaintiff as provided in sections five hundred and eighty-six and five hundred and ninety-one. Section six hundred and twenty-two relates only to new trials and has no application. When once properly dismissed on the grounds stated, the case is out of Court and the proceedings ended, and the Justice has no further control over it. ( Sprague v. Shed, 9 John. 140; Hunt v. Wickware, 10 Wend. 104.) The Justice in this case afterward reinstated the case and rendered judgment for plaintiff. As the defendant appeared in the action and submitted himself anew to the jurisdiction of the Court, the judgment may be binding upon him, but the action thus restored could not affect the rights of strangers.
Judgment in action to recover possession of personal property .
The right of the defendant, therefore, to retain the property ceased at half-past four P. M. on the 17th of March, eighteen hundred and sixty-three, at which time a judgment of dismissal was entered in Otis v. Barrett. But the demand and refusal upon which the present action was brought were made on the morning of that day, and this action was actually brought and the property taken from the custody of the defendant at least an hour and a half before the judgment in Otis v. Barrett was rendered. Hence, the defendant's right to the possession of the property was perfect at the time he refused to deliver it to the plaintiff, and at the time this action was brought, but ceased before the trial, and at the time of the trial he had no right to its possession. The only question remaining is as to what the judgment of the Court ought to be where such are the conditions.
In actions of this character, both plaintiff and defendant are to be considered as actors, (1 Chitty Pl. 165); and where, as in the present case, the plaintiff has obtained possession of the property in dispute at the commencement of the action, and the defendant asks for a return of the property in his answer, he to that extent is an actor and stands in the attitude of a plaintiff, and if at the trial it shall appear that he is not entitled to the possession for the reason that his interest therein has ceased intermediate the commencement of the action and the trial, and the right to the possession has vested in the plaintiff, the Court will not render a judgment in favor of the defendant for the possession of the property or its value, but will leave the property in the possession of the plaintiff where it belongs, and give the defendant a judgment for costs only.
It follows that the judgment must be modified by striking out all except that relating to costs.
And it is so ordered.