Barceloux v. Dow
| Decision Date | 30 September 1959 |
| Citation | 344 P.2d 41,174 Cal.App.2d 170 |
| Court | California Court of Appeals Court of Appeals |
| Parties | P. M. BARCELOUX and Burton J. Goldstein, Individually and as Co-partners doing business under the firm name of Goldstein, Barceloux & Goldstein, Plaintiffs and Appellants, v. Maxine B. DOW, Defendant and Respondent. Civ. 18424. |
P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, in pro. per.
Roy A. Sharff, San Francisco, for appellant.
Rogers & Clark, Webster V. Clark, Bernard P. McCullough, San Francisco, for respondent.
This is an appeal by plaintiffs from an order releasing a portion of defendant's property from a levy of attachment and from an order striking plaintiff's bill of particulars from the clerk's transcript on appeal.
On October 30, 1957, plaintiffs, P. M. Barceloux and B. J. Goldstein, attorneys at law, filed their complaint for attorneys' fees in the amount of $35,000 plus interest at 7% from August 14, 1957, for services rendered to the defendant, Maxine B. Dow, in her capacity as widow, heir, devisee, legatee and creditor of Estate of Edgar L. Dow. On the same date, plaintiffs filed their affidavit for attachment in the same amount and writs were issued to the City and County of San Francisco and Yolo County. Plaintiffs levied upon 2,000 shares of common stock of River Farms Company of California standing in the defendant's name together with accrued dividends in the sum of $4,000; her interest in the Estate of Edgar L. Dow, deceased, including $1,000 due for extraordinary fees as administratrix with the will annexed and $789 statutory fees. Plaintiffs also attached defendant's bank account in the sum of $519.72. Defendant filed her answer alleging that the plaintiffs had represented her only in her capacity as executrix of the Estate of Dow and had been paid for their services. On March 17, 1958, defendant moved to discharge and dissolve the writs of attachment as to all property attached in excess of the value of $35,000 plus interest, the amount plaintiffs sought in the complaint and specified in their affidavit for attachment. The court granted defendant's motion, and ordered all property released except 1,000 shares of common stock of River Farms Company of California. The court found that these shares had a minimum value of $50,000 and would therefore adequately protect the plaintiffs. Subsequently, the court granted defendant's motion to strike plaintiffs' bill of particulars which detailed the legal services rendered by the plaintiffs to the defendant.
Appellants specify three grounds of error:
(1) The Superior Court erred in striking plaintiffs' bill of particulars from the clerk's transcript on appeal;
(2) The court exceeded its jurisdiction in releasing a portion of defendant's property from attachment without requiring an undertaking from the defendant, pursuant to Sections 554 and 555 of the Code of Civil Procedure;
(3) The court abused its discretion in determining the value of defendant's property remaining under attachment.
Striking plaintiffs' bill of particulars from the Clerk's Transcript on Appeal was proper. The bill of particulars had no bearing on the issue before the court, namely, whether the excess property should be released from the levy of attachment. The merits of plaintiffs' claim were not at issue. Lewis v. Steifel, 98 Cal.App.2d 648, 650, 220 P.2d 769. For the purposes of the hearing, the court was governed by the amount set forth in the complaint and in the affidavit for attachment. Code Civ.Proc. § 538; Murillo v. Toole, 47 Cal.App.2d 725, 118 P.2d 895; Finch v. McVean, 6 Cal.App. 272, 91 P. 1019.
Plaintiffs charge that the court erred by ordering the release of all property under attachment except 1,000 shares of River Farms stock. The court found the stock to be a minimum value of $50 per share, or a total of $50,000. Thus, the minimum value of stock remaining under attachment exceeded the $35,000 plus 7% interest claim set forth in plaintiffs' complaint and in their affidavit for attachment. Plaintiffs contend that the trial court exceeded its jurisdiction, nontheless, because the defendant was not required to file an undertaking as provided by the Code of Civil Procedure, Sections 554 and 555. These two sections permit a defendant to move the court for the partial or total release from attachment of his property by furnishing an undertaking. However, these sections make no mention of the release of attached property in excess of the amount claimed by plaintiffs' complaint and affidavit for attachment, and there appears to be no provision in the Code of Civil Procedure for such a proceeding. Plaintiffs argue that since there is no such provision, Sections 554 and 555 must govern. They also contend that said sections must be strictly construed to limit the authority of the trial court to release property upon the sole condition that the defendant file an undertaking. This limitation, they argue, applies whether or not the property concerned is 'excess'.
We fail to find an expression of such legislative intent nor can it be read into Sections 554 and 555. The right to attach property in the first instance derives from the Code of Civil Procedure, Section 540, and the court cannot be precluded from considering this case section in a proceeding for the release of attached property. Section 540 provides, in part:
'The writ must be directed to the sheriff, or a constable, or marshal of any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand against such defendant, the amount of which must be stated in conformity with the complaint * * *' (Emphasis added.)
The inference is clear from the quoted language of Section 540 that a plaintiff is entitled to attach only so much of defendant's property as is necessary to satisfy plaintiff's claim in full.
A proceeding for the release of 'excess' property is simply a...
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