Opinion
July 7, 1910.
Charles Coleman Miller, for the appellant.
Holmes Jones, for the respondent.
This is an appeal from an order denying an application by an attachment creditor for leave to bring an action in aid of the attachment.
The application is made under sections 677 and 678 of the Code of Civil Procedure. The applicant has complied with all of the provisions of these sections, having given notice to the sheriff who levied the attachment and to a junior attaching creditor. The motion was denied with leave to renew upon giving notice not only to those above named, but also to the defendant. This amounts to imposing, as a condition of granting the motion, the prior service of notice upon the defendant, and it is this feature of the order which induces the present appeal. We see no reason why such a condition should be imposed, and none is suggested by counsel. The Code does not require such notice, and while under special circumstances it might be proper to impose such a condition, no such special circumstances appear in the present case. The defendant is a non-resident, and it might well be that the appellant would find difficulty in making service of a notice. The Code provides that the attachment debtor may come in after suit is brought, and that seems to have been deemed sufficient to protect his rights.
The order should be reversed and the motion granted, with ten dollars costs and disbursements.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.