Opinion
5-9-1956
HAYWARD LUMBER & INVESTMENT COMPANY, a corporation, Plaintiff and Appellant, v. E. W. BISCAILUZ, American Bonding Company of Baltimore, a corporation, C. G. Traughber, J. D. Brady, John Doe, Richard Roe and Lumbermen's Mutual Casualty Company, a corporation, Defendants, E. W. Biscailuz, J. D. Brady, American Bonding Company of Baltimore and Lumbermen's Mutual Casualty Company, a corporation, Respondents.* Civ. 21390.
Philip T. Lyons, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents E. W. Biscailuz and J. D. Brady. Crider, Tilson, & Ruppe, Donald E. Ruppe, Los Angeles, for respondent American Bonding Co. Sims & Wallbert, Los Angeles, for respondent Lumbermen's Mutual Cas. Co.
HAYWARD LUMBER & INVESTMENT COMPANY, a corporation, Plaintiff and Appellant,
v.
E. W. BISCAILUZ, American Bonding Company of Baltimore, a corporation, C. G. Traughber, J. D. Brady, John Doe, Richard Roe and Lumbermen's Mutual Casualty Company, a corporation, Defendants,
E. W. Biscailuz, J. D. Brady, American Bonding Company of Baltimore and Lumbermen's Mutual Casualty Company, a corporation, Respondents.*
May 9, 1956.
Hearing Granted July 5, 1956.
Philip T. Lyons, Los Angeles, for appellant.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents E. W. Biscailuz and J. D. Brady.
Crider, Tilson, & Ruppe, Donald E. Ruppe, Los Angeles, for respondent American Bonding Co.
Sims & Wallbert, Los Angeles, for respondent Lumbermen's Mutual Cas. Co.
NOURSE, Justice pro tem.
By its complaint in this action plaintiff seeks to recover from the defendant Biscailuz, the Sheriff of the County of Los Angeles, and the defendants Traughber and Brady, as his deputies, and from the sureties upon their respective bonds, an amount which it claims it lost by reason of an alleged breach of duty by the defendant officers acting in their official capacity. Plaintiff appeals from a judgment in favor of all of the defendants.
There is no dispute as to the facts, which are:
Plaintiff brought an action against Construction Products Corporation to recover a money judgment on account of the breach of a contract by that Corporation. In that action plaintiff caused a writ of attachment to issue; this writ was served by the sheriff upon the Bank of America in accordance with paragraph 6 of section 542 of the Code of Civil Procedure. Upon this garnishment the Bank answered showing that it was indebted to Construction Products Corporation in the sum of $6,858.14.
On June 1, 1951, upon motion made by the defendant Construction Products Corporation, the court ordered that the attachment be released as to all property attached except $2,000 'in bank account with Bank of America * * *' This order was entered in the minutes of the court on June 8, 1951, and on June 11 the plaintiff filed its notice of appeal from that order and also an undertaking on appeal to continue the attachment in force pursuant to the provisions of section 946 of the Code of Civil Procedure.
On June 12 the county clerk issued a certificate in which he stated that the order releasing the attachment had been made on June 1, that notice of the order had been served upon the attorneys for the plaintiff, and that no bond continuing the attachment had been filed. On the same day the defendant Biscailuz, acting through his deputy the defendant Brady, issued an order addressed to the Bank of America purporting to release all moneys held by it and attached by virtue of the writ theretofore served, over and above the sum of $2,000. This order was on a printed form which, by its heading, showed that it issued from the Office of the Sheriff, County of Los Angeles, State of California, Civil Division, and was entitled in the cause and denominated 'Order to Release.' It did not refer to any order of court releasing the garnishment or directing any action by the sheriff, but stated that the sheriff had released the property in question from the attachment.
Upon the receipt of this notice the Bank of America permitted Construction Products Corporation to withdraw from its account in the bank the sum of $4,858.14, that being all of the money which it had on deposit in excess of the sum of $2,000.
Plaintiff was successful in its appeal from the order discharging the attachment, and that order was, by the judgment of the appellate court, reversed. Thereafter plaintiff prosecuted its action against Construction Products Corporation and secured a judgment against it in the sum of $5,411.86. Upon this judgment it caused a writ of execution to issue, and directed the sheriff to levy this execution upon the Bank of America. This the sheriff did, collecting from the Bank of America the sum of $2,000, from which amount the sheriff deducted his fees and remitted to the plaintiff the sum of $1,982.30. Plaintiff then demanded that the sheriff collect the balance of the judgment from the bank, but was advised by the sheriff that he had, on June 12, 1951, released all funds in excess of these collected upon the execution from the attachment.
Between June 12, 1951, and the entry of the judgment in favor of the plaintiff and against Construction Products Corporation on November 23, 1952, the defendant Construction Products Corporation had been declared a bankrupt and no dividends were paid to its general creditors.
The court made findings of fact substantially in accordance with the facts as we have stated them, and further found that the garnishment had not been released and that the plaintiff had not suffered any damage or injury by reason of any breach of duty by defendant Biscailuz or defendant Brady.
We have come to the conclusion that the act of said defendants in issuing the notice of release of attachment did not effect a release of the garnishment effected by the service of the writ of attachment on the bank, and that therefore the court's findings that the plaintiff was not damaged by that act must be sustained.
The attachment of a debt is effected by serving upon the debtor of the defendant a copy of the writ of attachment; and if the principal demanded in the writ does not exceed $300, a copy of the complaint in the action from which the writ is issued and, in every case, a notice that the debts owing by him to the defendant are attached in pursuance of the writ. Code Civ.Proc., secs. 542, 543.
Upon being served, the garnishee may either pay to the sheriff the amount of the debt owing by him to the defendant, or, failing so to do, becomes liable to the plaintiff for the amount of that debt until the attachment be discharged or a judgment recovered by the plaintiff be satisfied. Code Civ.Proc., sec. 544.
If the debt is paid by the garnishee to the sheriff, then it becomes the duty of the sheriff to hold the money so paid until the attachment is discharged by lapse of time, Code Civ.Proc., sec. 542b, by order of court, Code Civ.Proc., secs. 554, 555, 558, or by final judgment in favor of the defendant. Code Civ.Proc., sec. 553.
If, however, the garnishee does not pay the amount of the debt to the sheriff, the sheriff no further duty to perform other than to make his return in accordance with the provisions of section 559, Code of Civil Procedure; it is not a part of his duties or within his power to release a garnishment or to issue any orders to the garnishee, Johnston v. Jones, 78 Cal.App. 84, 248 P. 286; Sunset Realty Co. v. Dadmun, 34 Cal.App.2d Supp. 733, 736, 88 P.2d 947.
The act of the sheriff in issuing the notice to the bank was not an act of misfeasance, nor careless or negligent performance of duty, but an intentional act beyond his powers, and therefore constituted malfeasance. The act being beyond his power, it could not operate to release the attachment, and the bank remained liable to the plaintiff under the provisions of section 544, Code of Civil Procedure. The plaintiff, therefore, upon securing its judgment against Construction Products Corporation and its writ of execution upon that judgment, could have enforced that liability by proceedings supplemental to execution or, if the bank then denied the debt, by an action against the bank. Code Civ.Proc., secs. 719, 720.
Appellant has not cited us any authority contrary to what we have stated as to acts of the sheriff and his deputy not causing him legal injury. It asserts, however, that the defendants by their answers admitted that they did release the attachment, and that therefore the trial court's finding to the contrary cannot be upheld.
Examination of the pleadings shows that each of the answers of the defendants did put in issue, by proper denials of the allegations of the complaint, the fact as to whether the defendants released the garnishment, although they did admit the giving of the notice; they further put in issue the allegations of the complaint that the plaintiff had been damaged. Further than this, a reading of the transcript of the oral proceedings discloses that the case was tried in the lower court upon the theory that this fact was in issue.
Appellant has not directly argued the question of estoppel, but has only intimated that question by its brief, although it did raise the question in the trial court. We have given careful consideration to the matter of estoppel, but have come to the conclusion that plaintiff is not in a position to assert an equitable estoppel. If the bank had been forced to pay the plaintiff the amount that it, acting upon the notice given by the sheriff, had released to Construction Products Corporation, and was here suing the defendants, there might be merit in a claim, by it, that it did not lie within the mouth of the sheriff to deny his power to release the garnishment. The plaintiff is not in privity with the bank, and did not itself act in reliance upon that notice or change its position because of it. It therefore cannot claim an estoppel.
The court in its conclusions of law found that the action was barred by the statute of limitations and barred by the failure of the plaintiff to serve a notice pursuant to the provisions of sections 1981 and 1982 of the Government Code, and that the defendant Biscailuz was not liable because of the provisions of section 1953.6 of the Government Code, which was not enacted until many months after the wrongful act in question here.
While appellant's attacks on these conclusions all seem meritorious, it would serve no purpose for us to discuss and decide them here, inasmuch as we have been forced to the conclusion that the sheriff's wrongful act did not cause damage to the plaintiff.
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 306 P.2d 6.