Johnston

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 by such officer, made by registered or certified mail within five days after being served with such certified claim, gives such officer an undertaking . . .

Here plaintiff attached defendant Cunningham’s prune crop, which was being held in a dehydrator owned by one Kimura. On November 4, 1968, the claimant Spinelli delivered his third party claim to the constable. On the same day the constable mailed plaintiff’s attorney, Mrs. Pamela Carrico, a copy of the claim with a covering letter which informed Mrs. Carrico that she was “hereby served” with the claim. The letter contained no demand for an undertaking by plaintiff, Mrs. Carrico’s client. At some unspecified time thereafter (according to a stipulation) the constable telephoned Mrs. Carrico and asked if her client was going…