Skip to main content

CLARY v. RUPERT (1949)

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


Civ. 16959.

Decided: October 03, 1949

Victor A. Berry, Culver City, for appellant. Richard K. Gandy, Robert G. Cockins, Santa Monica, Morgan W. Gordon, Beverly Hills, for respondent.

Defendant Rupert having deceased three months after the filing of this action and the due levy of a writ of attachment upon his property, his administratrix moved to dissolve the writ by reason of such death. She now appeals from the order denying the dissolution.

It has been the established law for over 80 years that the death of a defendant destroys the lien of an attachment upon his property. Turner v. Fidelity & Deposit Co., 187 Cal. 76, 84, 200 P. 959; Everett v. Hayes, 94 Cal.App. 31, 32, 270 P. 458; Harm v. Cunningham, 50 Cal. 365, 366; Hensley v. Morgan, 47 Cal. 622, 623; Myers v. Mott, 29 Cal. 359, 367, 89 Am.Dec. 49. No deviation from such holdings appears among this state's judicial decisions. Respondent urges that the legislature by the last three words of section 542b of the Code of Civil Procedure1 has clearly implied that the lien of attachment is to continue after the death of the defendant. Courts will not ignore a venerable rule of practice upon a mere implication of a statute. An intention on the part of the lawmakers to deviate from a procedure hoary with age must be unmistakably indicated. The doctrine of stare decision is too firmly entrenched to be thus eradicated. In the absence of a definite statute altering a rule, the decisions of the Supreme Court must be followed.

The order is reversed.


1.  ‘An attachment or garnishment on personal property, whether heretofore levied or hereafter to be levied, shall, unless sooner released or discharged, cease to be of and force or effect and the property levied on be released from the operation of such attachment or garnishment, at the expiration of three years after the issuance of the writ of attachment under which said levy way made; and the property levied on shall be delivered to the defendant or his order or to his assignee or executor or administrator.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law
CLARY v. RUPERT (1949)

Docket No: Civ. 16959.

Decided: October 03, 1949

Court: District Court of Appeal, Second District, Division 2, California.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard