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TOMLINSON v. LAMPTON et al.†
This is a petition for a writ of mandate, requiring respondent superior court to make an order directing the clerk of said court to pay petitioner a sum of money held by virtue of a writ of attachment. A demurrer has been filed to the petition.
The material facts alleged in the petition are:
Petitioner, through mesne assignments, became entitled to the sum of $875, which sum had been previously assigned to W. W. Middlecoff for attorney's fees in a condemnation action and deposited with respondent clerk in an interpleader action entitled City of Los Angeles v. Knapp (Cal.Sup.) 60 P.(2d) 127. In this latter action our Supreme Court decided that petitioner was entitled to the aforesaid sum. Thereafter N. F. Weston filed an action against W. W. Middlecoff, obtained the issuance of a writ of attachment, and served a garnishment on respondent clerk, attaching the property of W. W. Middlecoff standing in his name or that of petitioner, whereupon respondent clerk refused to pay to petitioner the sum in question.
If this court should grant the petition for a writ of mandate, the parties would be deprived of their right to have questions of fact concerning title to the property determined by the trial court. Provision is made in the Code of Civil Procedure for a hearing to determine title to property under attachment. Section 549 (as amended by St.1933, p. 1865), and section 689 (as amended by St.1935, p. 1958), Code Civ.Proc. Petitioner has a plain, speedy, and adequate remedy in the superior court.
The demurrer to the petition is sustained and the writ is denied.
PER CURIAM.
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Docket No: Civ. 11223.
Decided: January 25, 1937
Court: District Court of Appeal, Second District, Division 2, California.
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