Beshara v. Goldberg
| Citation | 221 Cal.App.2d 392,34 Cal.Rptr. 501 |
| Court | California Court of Appeals |
| Decision Date | 21 October 1963 |
| Parties | Edmond BESHARA, Plaintiff and Respondent, v. William GOLDBERG, Third-Party Claimant and Appellant. Civ. 27021. |
Milton Zerin, Beverly Hills, for appellant.
John Hay, Montecito, for respondent.
The issue in this appeal is the validity of a purported levy of attachment of certain oil royalty payments. Plaintiff, Beshara, sued Petrie, defendant, for money due on a promissory note and, at the commencement of proceedings, purportedly attached monies payable to defendant pursuant to a recorded 'assignment of oil payment.' The writ of attachment was duly issued and delivered to the sheriff for levy. The sheriff caused the recordation of a true copy of said writ, together with a description of the property attached and a notice that it was attached. The sheriff filed his return as a 'return on personal property,' certifying that he had delivered such documents to the recorder for recordation. He made no personal service of the writ on any occupant of any property, nor did he post copies of such documents on any real property. The property sought to be attached was described as
Defendant Petrie stipulated to the entry of a judgment against himself for approximately $10,000, but, prior to the entry of any judgment, he transferred his royalty interests to William Goldberg, appellant, for $30,000 cash. After entry of judgment, plaintiff sought to levy execution on the attached property. Goldberg filed a third-party claim in the proceeding between plaintiff and Petrie and stated, for release bond purposes, that the property was of a value of $45,000. The assignment to Goldberg from Petrie contained an option for one year to repurchase the rights conveyed for the sum of $60,000. The assignment also contained a statement, 'there are no outstanding attachments or liens against his said interest.' Goldberg also made a motion to quash the purported levy of attachment. Plaintiff filed a motion to quash the third-party claim. The court granted the motion to quash the third-party claim and denied the motion to quash the levy of attachment. From this last order Goldberg appeals 1.
Goldberg contends that a proper levy of attachment was not made. He asserts that it is immaterial whether the property to be attached be considered real or personal because, in either event, the sheriff failed to perform the statutory procedural requirements set forth in Code of Civil Procedure, Section 542. He did not serve a copy on the payor of the oil payments which would be required for a personal property levy on a credit. Neither did he serve the occupant of the property, nor, in the absence of an occupant, post a copy of the writ in a conspicuous place on the property attached, as is required in the case of a levy on real property.
Plaintiff Beshara concedes, correctly, that the property attached was a real property interest and not personal property (Standard Oil Co. of California v. John P. Mills Organization, 3 Cal.2d 128, 43 P.2d 797), but contends that the language concerning occupancy and posting of notice used throughout section 542 of the Code of Civil Procedure is not applicable to this type of property interest, since an oil royalty can not be occupied within the contemplation of such language.
Plaintiff contends that appellant Goldberg is not properly an intervenor, that an intervention is made by a complaint setting forth the grounds for intervention and filed by leave of court. There can be no intervention without leave of court. (Estate of Walters, 89 Cal.App.2d 797, 799, 202 P.2d 89.) Goldberg initiated his complaint by the filing of a third-party claim. He should have sought the permission of court to intervene by a complaint in intervention in the manner prescribed by law. (Code of Civil Procedure, Section 387; Berghauser v. Golden State Orchards, 208 Cal. 550, 282 P. 950; Dennis v. Kolm, 131 Cal. 91, 63 P. 141.) Here, the sheriff had made his return of service of the attachment as though it had been on 'personal property' and Goldberg following this lead, filed his third-party claim which was denied by the court. Without leave of court, and with no standing whatsoever as a party to the litigation, Goldberg also filed the notice of motion to quash the writ of attachment. ...
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