Henderson v. Drake

264 P.2d 921, 42 Cal. 2d 1, 1953 Cal. LEXIS 174

• Court: California Supreme Court
• Decided: December 31, 1953
• Docket: S. F. 18871
• Status: Published

Opinions

SCHAUER, J.

Defendant appeals from an order denying her motion to dissolve an attachment. The only ground of the motion was “that judgment had been rendered in favor of the defendant and no notice of appeal or undertaking on appeal had been filed within five days from and after the entry of said judgment.” The sole question for decision is the correctness of the order denying such motion. We have concluded that under sections 553 and 946 of the Code of Civil Procedure, upon which the motion was based, the trial court was required to .deny it.

In this action against defendant plaintiff attached certain shares of corporate stock owned by defendant. Thereafter, on November 26, 1951, judgment for defendant was entered in that action. No formal written notice of entry of judgment was given to plaintiff. No appeal was taken but on December 4, 1951, plaintiff served and filed notice of intention to move for a new trial. On January 3, 1952, defendant served and filed notice of motion to dissolve the attachment. On January 28, 1952, plaintiff’s motion for a new trial was granted. On February 6, 1952, defendant’s motion to dissolve the attachment was denied; on this date neither the time for an appeal by defendant from the order granting the new trial nor, in the event defendant took such appeal, for a cross-appeal by plaintiff from the judgment, had expired.

Section 553 of the Code of Civil Procedure provides in material part, “If the defendant recovers judgment against the plaintiff, and no appeal is perfected and undertaking executed and filed as provided in section 946 of this code, ... all the property attached . . . must be delivered to the defendant or his agent, the order of attachment be discharged, and the property released therefrom.” Section 946 provides in material part, “An appeal does not continue in force an attachment, unless an undertaking be executed and filed on the part of the appellant . . . and unless, within five days after written notice of the entry of the order appealed from, such appeal be perfected.”

Under the wording of those sections it is clear that an attachment may be preserved by taking an appeal and that an attachment remains effective after rendition of judgment for defendant until there is no longer a right to appeal, unless written notice of entry of judgment is given, in which event the appeal must be perfected within five days after such notice or the attachment becomes subject to discharge. Section 553 states that if defendant recovers judgment and no appeal is taken and no undertaking filed, then the “order of attachment [must] be discharged.” This necessarily implies that if an appeal is perfected and an undertaking filed, then the attachment should not be discharged. Similarly, section 946 states that an appeal does not “continue in force an attachment, unless an undertaking” is filed and, “unless, within five days after written notice of the entry of the order appealed from,” the appeal,is perfected. This necessarily implies that the filing of the undertaking and the perfection of the appeal will keep the attachment alive. The only reference to time contained in the sections is the requirement of section 946 that the appeal be perfected “within five days after written notice of the entry of the order appealed from.” It is reasonable, therefore, to conclude that the attachment remains effective as long as an appeal may be taken unless written notice of entry of judgment is given, in which event the attachment perdures for only five days after such notice unless an appeal is perfected within that time. If sections 553 and 946 were not so construed, plaintiff would have to file his undertaking and perfect his appeal at the same time the judgment for defendant was entered, or the mere entry of judgment for defendant would discharge the attachment.

As is held in Primm v. Superior Court (1906), 3 Cal. App. 208, 211 [84 P. 786], an attachment is not “finally and irrevocably dissolved the moment a judgment for defendant is entered. ... A fair, reasonable, unstrained construction [of sections 553 and 946] leads to the conclusion that the dissolvent force of a judgment is neutralized by a perfected appeal, provided the additional undertaking is filed and the appeal perfected within the specified time. This construction gives harmonious effect to both sections and does not nullify any part of either.”- (See, also, Morneault v. National Surety Co. (1918), 37 Cal.App. 285, 286 [174 P. 81] ; Clark v. Superior Court (1918), 37 Cal.App. 732, 734 [174 P. 681]; Albertsworth v. Glens Falls Indem. Co. (1948), 84 Cal.App. 2d 816, 819 [192 P.2d 66]; Davis v. Fidelity & Deposit Co. (1949), 93 Cal.App.2d 13, 16 [208 P.2d 414].)

The time to appeal had not expired when the notice of motion to dissolve the attachment was filed on January 3, 1952, or when the trial court denied such motion on February 6, 1952. Plaintiff had 60 days from the entry of judgment (i. e., from November 26, 1951) in which to file notice of appeal (Rules on Appeal, rule 2(a)), and when he served and filed his notice of intention to move for a new trial the time for appeal was extended (Rules on Appeal, rule 3(a)). When the trial court denied the motion to dissolve the attachment, plaintiff’s motion for a new trial had been granted. Regardless of the effect or lack of effect on the attachment of the order granting a new trial, defendant at the time of the denial of her motion to dissolve the attachment could have appealed from the order granting the new trial and, had she done so, plaintiff could have appealed from the judgment (Rules on Appeal, rule 3(a)). Therefore, on February 6, 1952, there was still an opportunity for plaintiff to perfect an appeal, file an undertaking, and in that manner keep alive the attachment, and the trial court correctly refused to order that the attachment be dissolved.

Since no written notice of entry of the judgment of November 26, 1951, was given, the five days referred to in section 946 did not run. Defendant urges that although she did not give formal notice of entry of judgment and thus start the running of the five-day period, there was substantial compliance with the requirement of section 946 that “written notice” be given. She says that her notice of motion to dissolve the attachment was, in effect, a notice of entry of judgment, and that plaintiff’s notice of motion for a new trial constituted a waiver of written notice of entry of judgment. It is true that a statutory requirement of “written notice” of entry of judgment can be waived, and that in some circumstances it has been held that the filing, by the party entitled to such written notice, of a document disclosing his actual knowledge of the entry of judgment shows waiver of the written notice. (Prothero v. Superior Court (1925), 196 Cal. 439, 441, 444 [238 P. 357].) But waiver is the intentional relinquishment of a known right. (Roesch v. De Mota (1944), 24 Cal.2d 563, 572 [150 P.2d 422].) The fact that plaintiff here evidenced his actual knowledge of the entry of judgment does not show that he intended to waive his right to receive written notice thereof for the purpose of starting the running of the five-day period within which he could save his attachment. (See Hughes Mfg. etc. Co. v. Elliott (1914), 167 Cal. 494, 496 [140 P. 17].) And the fact that defendant incidentally indicated to plaintiff, by serving and filing her notice of motion to dissolve the attachment, that judgment had been entered is not sufficient compliance with the statutory requirement that written notice be given to start the running of the five-day period. (See Byrne v. Hudson (1899), 127 Cal. 254, 257 [59 P. 597].)

For the reasons above stated the order appealed from is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.