Opinion
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
The action was brought on a promissory note against J. A. Robinson, the maker, and J. A. Ledden and S. P. Taylor, indorsers. Taylor filed an answer denying the allegations of the complaint, and setting up as an affirmative defense that he was merely a surety upon the note, that an attachment had been issued in the action and levied upon sufficient property of Robinson to satisfy the debt, and that the plaintiff had released the attachment without his consent. On this defense the court found as stated in the opinion. Judgment was rendered against all the defendants.
COUNSEL:
C. H. Parker, for Appellant.
Craig & Meredith, for Respondent.
OPINION
SHARPSTEIN, Judge
In Bank
The finding "that the plaintiff did not at any time release or cause to be released from attachment property of the defendant Robinson," is not justified by the evidence which shows "that real property sufficient in value of the defendant Robinson had been duly attached to satisfy any judgment which might be obtained in said action against said Robinson and Taylor"; and that the sheriff was directed by the attorneys of the plaintiff to release said property of said defendant Robinson from said attachment.
The claim of respondent's counsel that real property attached as this was can only be released by order of the court is not, in our opinion, tenable. The Code provides for a discharge of a writ of attachment, by order of the court on motion of the defendant, on the ground that the same was improperly or irregularly issued. But there is nothing to indicate an intention to preclude an attaching creditor from voluntarily releasing property attached, or that such a release would not be valid until it received the sanction of the court. And we know of no way in which the plaintiff could have made a release more effectual than by directing the sheriff to release the property described from the attachment. The cases which hold that the sheriff could not do this without [2 Cal.Unrep. 228] the order of the court, on the consent or direction of the plaintiff, have no application to this case.
Judgment and order reversed.
MORRISON, C.J., McKINSTRY, J., THORNTON, J., MYRICK, J., and McKEE, J., concurred.
Petition for a rehearing denied.