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64 Cal. 387

Smith v. Robinson

California Supreme Court

Decided December 26, 1883

California Supreme Court · decided 1883-12-26

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.

Key passage — most relied on by later courts

““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. ’ ’”

quoted by 1 later decision, including Hall v. Dailey

Good law ✅— No negative treatment on recordhow we know

Decided 1883-12-26

How this case has been cited

Cited by 4 later decisions — most recently December 1970

4 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Sharpstein, J.

¶1—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 bo 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.

¶2The 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 *388irregularly 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 the order of the court, on the consent or direction of the plaintiff, have no application to this case.

¶3Judgment and order reversed.

¶4Morrison, C. J., McKinstry, J., Thornton, J., Myrick, J., and McKee, J., concurred.

¶5Petition for a rehearing denied.

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