Speyer v. Ihmels & Co.

Citations

• 21 Cal. 280

Syllabus

<p>la an action to recover money in which an attachment has been issued and levied upon property of the defendant, a subsequent attaching creditor may intervene at any time before the entry of judgment for the purpose of contesting the validity of the first attachment.</p> <p>Davis v. Eppinger (18 Cal. 378) affirmed On this point.</p> <p>Where a subsequent attaching creditor intervenes in an action for the purpose of setting aside an attachment issued therein, on the ground that there is no debt due from the defendant to the plaintiff, the allegations in the pleading on the part of the intervener traversing the complaint, have the same effect as denials in an answer and require affirmative proof by the plaintiff of his cause of action, in default of which the intervener will have judgment in his favor.</p> <p>A judgment will not be reversed because of an error which affects the rights of parties who have not appealed, and not those of the appellants.</p> <p>Action commenced by attachment to recover an alleged indebtedness, and defendants made default; before the entry of judgment, certain subsequent attaching creditors intervened and contested the validity of the plaintiff’s attachment, on the ground that no debt was really due from plaintiff to defendant. On the issue thus raised the Court found in favor of the intervenors, and thereupon entered an order setting aside the attachment of plaintiff: Held, that the order was erroneous in entirely setting aside the plaintiff’s attachment, and must be modified so as merely to postpone the plaintiff’s lien to that of the intervenors.</p> <p>Where the merits of the case were not investigated in the lower Court by reason of an uncertainty as to the proper mode of proceeding under the anomalous provisions of the Practice Act relating to interventions, the Supreme Court awarded a new trial, although the decision of the Court below upon the main question involved was approved, and the only error disclosed might have been cured