WEAVER v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO (1949)

District Court of Appeal, First District, Division 1, California.

WEAVER v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO.

Civ. 14204.

Decided: October 22, 1949

Carroll, Davis & Freidenrich, San Francisco, J. D. Burdick, San Francisco, for petitioner. Henry C. Clausen, San Francisco, for respondents.

On this petition for rehearing it is urged that the opinion as written is predicated upon the theory that there was a simultaneous offer to rescind and delivery of the property, and that such theory is false. It is contended that the record shows that the Davises kept the personal property for five days after offering to rescind. It is then urged that during that period they had a lien under the provisions of § 1789(5) of the Civil Code, which, it is claimed, bars the right to an attachment.

The record shows the following: The complaint and offer to rescind are silent as to the fact here involved. The affidavit filed in support of the attachment avers that the claim is unsecured. The petition for a writ of mandate filed in this court avers that the Davises ‘are secured by a lien.’ The verified answer of the Davises avers that they removed from the property and that ‘since said rescission have not had any of the real or personal property in their possession or under their control.’ After the oral argument, petitioner was permitted to file the affidavit of Meizel in which it is averred that the Davises kept the property for five days before returning it. Thus, even if the facts be interpreted most strongly in favor of petitioner, the most that appears is that the Davises, who claimed to have suffered damage by reason of the acts of petitioner and Meizel, rescinded and offered to restore, stayed in possession for five days, then, long before filing their complaint, removed from the prperty. Under such circumstances, the Davises waived their lien and elected to proceed as they did. Certainly they had a legal right to waive their lien, and the fact that they did so clearly appears.

But, says petitioner, under such circumstances, under the provisions of §§ 537 and 538 of the Code of Civil Procedure, the Davises were required to aver in their affidavit filed in support of their attachment, that they once had a lien, but that ‘such security has, without any act of the plaintiff, * * * become valueless.’ Such an averment was not jurisdictional under the facts here disclosed. As pointed out in the opinion on file, ‘in determining the right to an attachment all of the facts set forth in the record before us must be considered.’ The affidavit averred that the claim was unsecured, and the facts disclosed by the entire record demonstrate the truth of that averment. Sections 537 and 538 have no application to the disclosed facts. Here the Davises could have had a lien, and perhaps did have one for a period of five days. They could have kept possession of the property and asserted their lien. But they elected to redeliver possession of the property and waive their lien. Certainly, they were not forever barred from an attachment because, perhaps, they had a lien for five days and then elected to waive it. Certainly, the person who must be considered in this proceeding as a wrongdoer should not be legally entitled to claim that a waiver is the making a security ‘valueless' within the meaning of the sections.

The proper application of the sections is shown in Yosemite Growers Co-op. Ass'n v. Case-Swayne Co., 73 Cal.App.2d 806, 167 P.2d 541. That was an appeal from an order discharging an attachment. The trial court discharged the attachment because the record before the court disclosed that the plaintiffs had a lien on 82,000 cases of peaches but sold 80,000 cases of the fruit. The plaintiff failed to aver that the lien on the 2,000 cases still in his possession without fault had become valueless. The appellate court, of course, affirmed the trial court, because the pleadings disclosed an existing effective lien. In the instant case the pleadings disclose no lien, disclose that even if one existed it does not now exist, and that it does not exist because the Davises waived it.

The petition for rehearing is denied.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.