Collins v. Montgomery

California Supreme Court July 1, 1860

Collins v. Montgomery, 16 Cal. 398 (Cal. 1860)

Cope

Opinion of the Court

Cope, J. delivered the opinion of the Court

Field, C. J. concurring.

We are of opinion that no lien was acquired upon the property in *403controversy, either by the mortgage to Woodville, or under the attachment sued out by the plaintiff. In the view we take of the case, however, the objections to the mortgage are immaterial. With reference to the attachment, it is sufficient to say that the property belonged to a corporation, and that the attachment was issued in a suit to which the corporation was not a party. It is true, the complaint was afterwards amended, and the corporation brought in, but the attachment had been executed and returned, and no additional steps were taken to perfect the lien. It is clear, therefore, that no lien was acquired under the attachment, and that the rights of plaintiff only date from the rendition of his judgment on the fourteenth of August, 1858. The defendants claim under a judgment rendered five days before, and the Court finds that this judgment became a lien upon the property anterior to that of the plaintiff. This disposes of the case in favor of defendants, and the judgment is therefore affirmed.

Reference

Full Case Name: COLLINS v. MONTGOMERY
Cited By: 1 case
Status: Published
Syllabus: Plaintiff, January 10th, 1858, in a suit entitled “ C. v. M. and others, composing the Wisconsin Quarts Mining Co.,” a corporation, attached a quartz mill and ledge belonging to the corporation. June 26th, 1858, the complaint was amended, so as to make the corporation, as such, the party defendant, and judgment was rendered against the company August 14th, 1858, the property sold, and plaintiff the purchaser. October, 1857, W. received from the corporation a chattel mortgage on this property, had decree of foreclosure August 9th, 1858, sale October following—W. the purchaser. Defendants here are in possession, under Sheriff’s sale on the decree. Plaintiff claims title under his judgment and sale; Held, that he cannot recover; that he acquired no lien by his attachment, because the property attached belonged to the corporation, which was not a party to the suit until after the levy and return of the writ; that plaintiff’s rights attach only from the date of his judgment, August 14th, 1858, and his lien being subsequent to the lien of W.’s judgment, August 9th, 1858, under which defendants claim, the latter have the better right. The chattel mortgage given, in this case, to Woodville, gave no lien upon the property. See facts.