Shea v. Johnson

Citations

• 101 Cal. 455
• 35 P. 1023
• 1894 Cal. LEXIS 1057

Syllabus

<p>Attachment—Priority—Insufficient Complaint.—A complaint in an action to subordinate a prior attachment lien of the defendant, to a subsequent attachment lien of the plaintiffs, upon the ground that the affidavit of the defendant that the debt was unsecured, was false, and stating that his suit was for rent, and that he had retained a lien upon personal property in possession of the debtor on the leased premises, but stating no facts from which the court could see that some particular kind of lien did exist on personal property out of possession of the defendant, and not attacking the justness or validity or good faith of the debt to the defendant, does not state a cause of action.</p> <p>Id.—Confession of Judgment—Bill of Sale.—The fact that the debtor before the issuance of the plaintiff’s attachment confessed judgment to the defendant, upon which an execution was issued and levied upon the property in question, and also gave to the defendant a bill of sale of personal property without a change of'possession, it not appearing that the judgment was confessed for more than was just and legally due, or that the value of the property was greater than the just claim of the defendant, cannot injure the plaintiffs or entitle them to subordinate the prior lien of defendant’s attachment to a subsequent lien of plaintiff ’s attachment.</p> <p>Id.—Improper Affidavit—Attachment by Bona Fide Creditor.—The general rule is, that where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, an objection to the attachment proceedings on the ground of the impropriety of the affidavit for the attachment, can be successfully made only by the defendant in the attachment suit.</p>