claim was valid against the subsequent attaching creditors, the case not being one either of actual or constructive fraud.176

4134. Fraudulent attachment. Where a first attachment against an insolvent is set aside as fraudulent, in a suit brought by a subsequent attaching creditor, to which various other attaching creditors, prior and subsequent, are parties, the plaintiff in the suit can not claim priority over the attachments preceding his on the ground that by his superior diligence the fraud has been discovered.177 A junior attaching creditor can not take advantage of irregularities in the affidavit or bond given by a prior attaching creditor of a common debtor.178

§ 4135. Irregular process. Where an attachment was issued on a complaint, which was a printed form, with the blanks filled up by the clerk, at the request of the plaintiff, but no name signed to it till next day, and after other attachments on the same property, when it was signed by the clerk, with the name of plaintiff's attorney, it was held that the action of the clerk, though not correct, was only an irregularity, and the complaint was not void.179 The issue of an attachment, and the levy of the same on goods, if there is a legal cause of action existing, is not such a duress of goods as to give a cause of action for damages in favor of the one whose goods are seized.180 An attachment, regular upon its face, is not void because the complaint does not set up a cause of action which warrants the issuance of an attachment.181

§ 4136. Return

attachment personal property.

Form No. 999.

SHERIFF'S OFFICE,

Of the City and County of San Francisco. By virtue of the annexed writ I duly attached all moneys, goods, credits, effects, debts due or owing, and all other personal property [or all stocks or shares, or interest in stocks or

176 Brewster v. Bours, 8 Cal. 501.

177 Patrick v. Montader, 13 Cal. 424; 73 Am. Dec. 589. 178 Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162.

179 Dixey v. Pollock, 8 Cal. 570.

180 Kohler v. Wells, 26 Cal. 606.

181 McComb v. Reed, 28 Cal. 281; 87 Am. Dec. 115. It is not essential that the complaint set out all the facts or various proceedings which authorize the issuing of the attachment. Bunneman v. Wagner, 16 Oreg. 433.

shares, of the

company], belonging to the defendants therein named [or to either of them], in the possession or under the control of the parties hereinafter named, by serving upon each of them respectively, personally, in the

county of... at the times set opposite their respective names, a copy of said writ, with a notice in writing that such property was attached in pursuance of said writ, and not to pay over or transfer the said property to any one but myself. Statement demanded. [Annex names of parties served, time of service, and answers of parties served.]

[DATE.]

§ 4137. Amendment of return.

S. T., Sheriff.

By D. S., Deputy Sheriff.

This return can not be

amended where a third party has acquired an interest adverse to the attachment.182 But a mistake in the date of a sheriff's return may be amended at any time.183

§ 4138. Return conclusive. The sheriff's return is conclusive against the plaintiff, and his action must be for a false return.184 Where a writ of attachment was issued on the 26th of August, and a copy delivered to the occupant of the premises, or posted upon them, on the 29th of that month, and on the same day the writ was returned, with a certificate of the sheriff's proceedings, and filed in the clerk's office, but no copy of the writ, with a description of the property, was filed with the recorder until the 9th of September following, it was held that after the return of the writ to the clerk's office, on the

182 Newhall v. Provost, 6 Cal. 85; Webster v. Haworth, 8 id. 21; 68 Am. Dec. 287. When it appears that the notice of attachment upon realty, filed with the clerk and recorder, is correct, it is not error, on application supported by affidavits and notice to opposing counsel, to allow the sheriff to amend his return by correcting a misdescription of the realty attached. McClure v. Smith, 14 Col. 297. Insufficient return by sheriff. See Hall v. Stevenson, 19 Col. 153; Hodgman v. Barker, 14 N. Y. Supp. 574; Moore v. Coats, 43 Miss. 225. Sufficient return to support levy. See Davis v. Baker, 72 Cal. 494. The regularity of a levy is sufficiently shown, as against a collateral attack, by the return of the attaching officer reciting that he had duly levied the attachment upon all the right. title, and interest of the defendant in and to certain described real estate. Anderson v. Goff, 72 Cal. 65.

183 Ritter v. Scannell, 11 Col 2o8; 70 Am. Dec. 775. 184 Egery v. Buchanan, 5 Cal. 53.

29th of August, the sheriff had no authority to take any proceedings for the completion of the attachment, previously omitted; that the writ was authority to him only for acts performed while it remained in his possession; and hence, that another creditor of the debtor purchasing the property from the latter, on the 6th of September, took it free from any lien of the attachment.185

§ 4139. Return, when to be made. The sheriff must return the writ of attachment with the summons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto; and whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of such order may be filed in the offices of the county recorders in which the notices of attachment have been filed, and be indexed in like manner. 186

4140. Second attachment. Where an officer, by virtue of a second attachment, levies on property already in his possession by virtue of a former attachment, it is only necessary for him to return that he has attached the interest of the defendant in the property then in his possession.187

§ 4141. Sale of perishable property. If any of the property attached be perishable, the sheriff must sell the same in the manner in which such property is sold on execution.188 order of sale is required to authorize a sale by the officer.180

§ 4142. Notice of motion to discharge attachment.

No

[TITLE.]

Form No. 1000.

attorney for defendant:

Please take notice that on an affidavit, of which the within is a copy [or of which a copy is annexed], and on all the papers filed and served in this action, the undersigned will move the court, at on the ... ... day of...

185 Wheaton v. Neville, 19 Cal. 41.

186 Cal. Code Civ. Pro., § 559. Writs of attachment are not, technically speaking, returnable to any term of court. Brady v. Farwell, 8 Col. 97.

187 O'Conner v. Blake, 29 Cal. 312.

188 Cal. Code Civ. Pro., § 547.

189 Low v. Henry, 9 Cal. 551.

18.., at o'clock in the .......noon, or as soon thereafter as counsel can be heard, to discharge the attachment in this action [if for irregularity, add, upon the grounds, among others- specifying the irregularity], and for such other or further order as may be just.

[DATE.]

[SIGNATURE.]
In

action

4143. Against steamers, boats, and vessels. against steamers, vessels, and boats, after appearance in the action of the owner, the attachment may on motion be discharged in the same manner and on like terms and conditions as attachments in other cases.190 And the court whose mesne or final process has made the first actual seizure will have exclusive power over its distribution, and its judgments will be regarded as complete adjudications of the subject-matter of litigation.191

§ 4144. Notice. A notice of motion to discharge a writ of attachment, "because the said writ was improperly issued," is insufficient. The notice should specify the grounds of the motion, and wherein it will be urged that the writ was improperly issued. 192

§ 4145. When motion may be made. The defendant may also, any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, or to a county judge, that the writ of attachment be discharged, on the ground that the same was improperly or

190 Cal. Code Civ. Pro., § 825; relative to the claim for wages, see Cal. Code Civ. Pro., § 823.

191 Averill v. Steamer Hartford, 2 Cal. 308.

192 Freeborn v. Glazer, 10 Cal. 337; Cupit v. Park City Bank, 10 Utah, 294. Grounds for dissolution of attachment. See Wyman v. Wilmarth, 1 S. Dak. 35; Kuehn v. Paroni, 20 Nev. 203. If the prescribed procedure for the release of attached property be not invoked, the levy remains in force. Collins v. Burns, 16 Col. 7. For instances where an attachment ought not to issue, see Griswold v. Sharpe, 2 Cal. 24; Dulton v. Shelton, 3 id. 206; Low v. Henry, 9 id. 539; Gregory v. Higgins, 10 id. 339; Patrick v. Montader, 13 id. 434; Davis v. Eppinger, 18 id. 378; 79 Am. Dec. 184; Hill v. Grigsby, 32 Cal. 55: Hathaway v. Davis, 33 id. 168; Porter v. Brooks, 35 id. 199; Cal. Code Civ. Pro., § 556.

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66

irregularly issued. 193 This section of the Practice Act, which provides that the defendant may, at any time before answering, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, or to a county judge, that the attachment be discharged, on the ground that the writ was improperly issued,” does not obviate the necessity of specifying the particular points of irregularity upon which the motion will be made.194

If the motion be

§ 4146. May be opposed by affidavits. made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made. 195

§ 4147. The same- where the motion is simply on giving security.

Form No. 1001.

[TITLE.]

To

at

attorney for defendant:

Please take notice that the undersigned will move this court,

at ...

on the o'clock in the

...noon, or as soon thereafter as counsel can be heard, to discharge the attachment in this action, on giving due security.196

[DATE.]

193 Cal. Code Civ. Pro., § 556.

[SIGNATURE.]

194 Freeborn v. Glazer, 10 Cal. 337. A motion to discharge an attachment is too late if made after the expiration of the time to answer, and calling it a "substituted motion" will not help it. Magee v. Fogerty, 6 Mont. 237. The motion must be made within the time in which the defendant shall appear and answer the summons. Wallace v. Lewis, 9 Mont. 399. In Wyoming, the defendant may, at any time before judgment, move to discharge the attachment. First Nat. Bank v. Swan, 3 Wyo. 356; see, also, Guest v. Ramsey, 50 Kan. 709; Reed v. Maben, 21 Neb. 696; First Nat. Bank v. Randall, 38 Minn, 382; Black v. Scanlon, 48 Ga. 12.

195 Cal. Code Civ. Pro., § 557; Windt v. Banniza, 2 Wash. St. 147. 196 The above notice is under Cal. Code Civ. Pro., § 554. The defendant must have appeared in the action. The notice is governed, as to time, by section 1005. The application may be to the court, or to the judge thereof, or to a county judge. Cal. Code Civ. Pro., § 554. It may be for an entire or partial discharge of the attachment, and the order can be made only on giving the bond required by the following section. id.