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JOHNSTON v. CUNNINGHAM

Docket No. 12305.

12 Cal.App.3d 123 (1970)

90 Cal. Rptr. 487

HOWARD JOHNSTON, Plaintiff and Appellant, v. JERRY CUNNINGHAM, Defendant; JOSEPH SPINELLI, Third Party Claimant and Respondent.

Court of Appeals of California, Third District.

October 20, 1970.

Attorney(s) appearing for the Case

COUNSEL

Carrico & Carrico, Jack E. Carrico and Pamela Fawn Carrico for Plaintiff and Appellant.

No appearance for Defendant.

Millington & Millington and Robert Millington for Third Party Claimant and Respondent.

Daniel V. Blackstock, County Counsel (Butte), and Neil McCabe, Deputy County Counsel, as Amici Curiae on behalf of Third Claimant and Respondent.

OPINION

FRIEDMAN, Acting P.J.

This is an appeal from an order sustaining a release of attachment by the constable and "allowing" a third party claim.

The problem centers on that provision of the first paragraph of Code of Civil Procedure section 689, which permits the levying officer to release personal property from a levy after a third party claim has been made "unless the plaintiff ... within five days after written demand...

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