HENDERSON v. DRAKE

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District Court of Appeal, First District, Division 2, California.

HENDERSON v. DRAKE.*

Civ. 15343.

Decided: April 17, 1953

Erskine, Erskine & Tulley and J. Oscar Goldstein, San Francisco, for appellant. H. W. Glensor, San Francisco, for respondent.

Respondent, the plaintiff below, secured a writ of attachment which was levied upon certain personal property of defendant and appellant. After a trial on the merits judgment was entered for defendant on November 25, 1951. On December 4, 1951 plaintiff served and filed a notice of intention to move for a new trial. On January 3, 1952 defendant served and filed a notice of motion to vacate and dissolve the writ of attachment on the ground that no notice of appeal or undertaking had been filed as required by sections 553 and 946 of the Code of Civil Procedure.

Plaintiff's motion for new trial was granted on January 28, 1952 and on February 6, 1952 the motion to dissolve the attachment was denied. This appeal is from the order refusing to discharge the attachment.

Section 553, Code Civ.Proc., provides:

‘If the defendant recovers judgment against the plaintiff, and no appeal is perfected and undertaking executed and filed as provided in section 946 of this code, any undertaking received in the action, all the proceeds of sales and money collected by the sheriff, constable, or marshal and all the property attached remaining in such officer's hands, must be delivered to the defendant or his agent, the order of attachment be discharged, and the property released therefrom.’

The pertinent part of sec. 946, Code Civ.Proc., referred to in section 553, reads:

‘An appeal does not continue in force an attachment, unless an undertaking be executed and filed on the part of the appellant by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless, within five days after written notice of the entry of the order appealed from, such appeal be perfected.’

The legislature has made no provision for continuing an attachment in effect where a new trial is granted or the judgment for the defendant otherwise vacated. It has stated in clear terms in section 553 that after judgment has been rendered for defendant the attachment must be discharged unless an appeal is perfected and undertaking furnished as provided in section 946.

The effect of these sections was construed in Clark v. Superior Court, 37 Cal.App. 732, 174 P. 681. In that case a judgment of nonsuit was entered and later, on plaintiff's motion, the judgment of nonsuit was vacated. The court noted that no appeal had been perfected from the judgment of nonsuit as provided in section 946 and held that since that was the only method provided by the legislature for continuing the attachment in force after judgment had been entered for defendant the attachment was discharged. The court said, 37 Cal.App., at page 734, 174 P. at page 682: ‘It is true the court on December 29th made an order granting plaintiff's motion to set aside and annul the order of nonsuit. But such order could not, in the absence of statutory provision therefor, revive the lien of the attachment which had theretofore been dissolved by the judgment in favor of defendants, and which, in so far as concerned the attachment, had become final.’

An appeal is perfected by filing notice of appeal and furnishing the required undertaking. Patterson v. Pacific Indemnity Co., 119 Cal.App. 203, 206, 6 P.2d 102; Coniff v. Superior Court, 90 Cal.App. 169, 174, 265 P. 555; Hill v. Finnigan, 54 Cal. 493, 494. The legislature has had ample opportunity since the decision in 1918 of Clark v. Superior Court, supra, to make provision for other methods of continuing an attachment in effect after judgment for defendant besides the perfecting of an appeal as provided in section 946, but it has not seen fit to do so although section 553 was amended in other particulars in 1933. Stats.1933, p. 1866. Indeed ‘There is a strong presumption that when the legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.’ Armstrong v. Armstrong, 85 Cal.App.2d 482, 485, 193 P.2d 495, 497; Hunt v. Superior Court, 93 Cal.App.2d 504, 507, 209 P.2d 411.

Sec. 946 provides for the perfecting of the appeal in order to continue an attachment in force ‘within five days after written notice of the entry of the order’. The record before us does not show that written notice was given. However on December 4, 1951 plaintiff served and filed a notice of intention to move for a new trial. Under the settled rule this amounted to a waiver of written notice. The court said in Prothero v. Superior Court, 196 Cal. 439, 444, 238 P. 357, 358: ‘By filing this notice of motion in the records and files of said action, the defendants revealed the fact that they had actual knowledge of the entry of said judgment. Under such circumstances the written notice of the entry thereof was waived.’ This has been the uniform rule in California. 20 Cal.Jur. 176–177. At the latest the appeal was required to be perfected by sec. 946 within five days of this waiver of notice which occurred on December 4, 1951.

Respondent's claim that section 553 is self-executing and hence the court properly refused to discharge the attachment seems hypertechnical. The appellant is entitled under sec. 553 to an order discharging the attachment.

The order appealed from is reversed with directions to the trial court to grant the motion to discharge the attachment.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.