Rudolph v. Saunders

Citations

• 111 Cal. 233
• 43 P. 619
• 1896 Cal. LEXIS 569

Syllabus

<p>Growing Crop—Levy op Attachment—Insufficient Return.—A growing crop must be attached as personal property not capable of manual delivery, by leaving with the person in possession thereof a copy of the writ, and a notice that such property is attached, pursuant to subdivision 5 of section 542 of the Code of Civil Procedure, and a constable’s return, of an attachment showing that he attached such crop by taking it into his custody, is insufficient to show a valid levy of the attachment.</p> <p>Id.—Attachment Proceedings Statutory.—Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder.</p> <p>Id. —Proof of Levy—Finding—Conflicting Evidence—Appeal.—Where the constable was called to supplement his return by testifying that he served the copy of the writ and notice required by the statute upon the person who was in possession of the growing crop; and such person, on the other hand, testified positively that no notice of attachment whatever was served upon him, a finding, in view of the conflicting evidence, that no notice of attachment was served, will not be disturbed upon appeal.</p> <p>Id.—Chattel Mortgage—Levy of Execution.—Where a valid chattel mortgage exists upon a growing crop prior to a levy of execution, and there is no valid attachment lien prior to the chattel mortgage to which a sale under execution can relate, there can he no valid levy of execution upon the crop, without paying off the chattel mortgage as provided by section 2969 of the Civil Code.</p>