Winters v. Pearson

14 P. 304, 72 Cal. 553, 1887 Cal. LEXIS 572

Opinion

Thornton, J.

The attachment was improperly and irregularly issued within the ruling of this court in Wilke v. Cohn, 54 Cal. 212.

On a motion to discharge a writ of attachment, on the ground that it was improperly or irregularly issued, the affidavit on which the writ was issued is not amendable. This, in our opinion, is in accordance with section 558 of the Code of Civil Procedure, which provides that if, on such an application, it satisfactorily appears that the writ was improperly or irregularly issued, it must be discharged.

To allow the affidavit to be made good by amendment, and upon such action refuse to discharge the writ, would, in our judgment, violate the requirements of the section just above cited.

The defendant in the action did not waive his right to apply to discharge the writ under section 556 of the Code of Civil Procedure, because he had previously released .the property from the operation of the writ under sections 554 and 555 of the Code of Civil Procedure. The right to make the application under section 556 is expressly given, though the defendant has previously proceeded under sections 554 and 555.

The orders of the court must be affirmed.

Ordered accordingly.

McFarland, J., and Sharpstein, J., concurred.