This is a proceeding in certiorari. Heretofore Morris Maidl was arrested on a charge of violating section 476a of the Penal Code, that is, issuing checks with intent to defraud. The arrest was made in his place of business. Before leaving the room he turned to an assistant and taking a wallet out of his hip pocket he handed it to her with directions to keep it for him. The arresting officer stated he could not do that and directed the assistant to hand the wallet back to the defendant. As she did so the officer took the wallet and when the defendant was booked at the police station the wallet and its contents were delivered over to the property clerk. The wallet contained $1373 in cash and $500 in checks. Thereafter an action was commenced in the superior court by this petitioner against Morris Maidl et al. The complaint in that action was framed in two counts. In the first count the plaintiff alleged a cause of action as for goods sold and delivered for the agreed price of $13,076.37. The second count was for the reasonable value. After commencing the action the plaintiff took out a writ of attachment and caused it to be served on the property above mentioned in the custody of the property clerk. Later the defendant appeared in the civil action and made a motion to vacate, set aside and quash the attachment. As stated above, the wallet contained $1373 in cash and $500 in checks. Of the whole, $1200 was shown to be the fruits of the violation of section 476a of the Penal Code. No fraud, trick or oppression was shown in obtaining or serving the writ. After a hearing had the trial court made an order granting the motion. To review that order this proceeding was commenced.

The petitioner contends that it was within its rights in causing the contents of the wallet to be garnished. The defendant earnestly contends that under the law the property was not subject to garnishment. In Emmanuel v. Sichofsky, 198 Cal. 713 ', at page 715 [ 247 Pac. 205 , 48 A. L. R. 580], Mr. Chief Justice Waste states as follows:

As an exception to the rule stated by our Supreme Court and restated by the Supreme Court of Washington, there are cases holding that when it does not appear that criminal process has been abused and it does appear that the property garnished was obtained by the criminal acts of the debtor from the attaching claimant the garnishment will be enforced. (Reifsnyder v. Lee, 44 Iowa, 101 [ 24 Am. Rep. 733 ] ; Ex parte Hurn, 92 Ala. 102 [ 9 So. 515 , 25 Am. St. Rep. 23 , 13 L. R. A. 120]; Fitzgerald v. Nickerson, 43 R. I. 396 [ 113 Atl. 290 , 16 A. L. R. 373]; Whitney Cent. Trust & Savings Bank v. Norton, 157 La. 199 [ 102 So. 306 ].) However, all of the cases last cited turn on the question as to whether the criminal process was or was not abused. When under the facts it was shown that the use of the process had been abused the service thereof was quashed: . (Pomroy & Co. v. Parmlee, 9 Iowa, 140 [ 74 Am. Dec. 328 ].) When it was found that the use had not been abused the motion to quash was denied. (Patterson v. Pratt, 19 Iowa, 358 ; Reifsnyder v. Lee, supra.) In Pomroy & Co. v. Parmlee, supra, the court made an extended examination of the law from the time of Lord Holt. Having done so it summarized its conclusions as follows: to a suit can gain nothing by fraud or violence under the pretense of process, nor will the fraudulent or unlawful use of process be sanctioned by the courts. In such cases parties will be restored to the rights and position they possessed and occupied before they were deprived thereof by the fraud, violence or abuse of legal process.’ To the same effect, see Pomroy v. Parmlee, 9 Iowa 140 [ 74 Am. Dec. 328 , and Patterson v. Pratt, 19 Iowa 358 .

In his last brief the claimant, Maidl, asserts that Golden Gate Candy Products Co. had no right to garnish the contents of the wallet because, he asserts, one may not attach his own property. We think the claim is not supported by the record. As the Golden Gate Candy Products Co. had a clear right to maintain an action against Maidl in debt or indebitatus assumpsit, it had the right to maintain garnishment proceedings. (13 Cal. Jur. 3; Redondo Beach Co. v. Brewer, 101 Cal. 322, 325, 326 [ 35 Pac. 896 ].) The point is without merit.

The distinction in the rules of law applicable to this particular case was not presented to the trial court by the pleadings, the proof nor the arguments, so far as we are advised. It was thereby led into rendering its decision under a misunderstanding of the law and exceeded its powers in making the order vacating, setting aside and quashing the service of the writ. The sole fact that the wallet was on the person of Morris Maidl when he was arrested did not constitute a complete ground for quashing the service of the writ. As "the $1200 was properly garnished the levy thereon should stand. The record before us does not show whether the rest of the contents of the wallet, in excess of the $1200, was or was not the fruits of the crime above mentioned.

The order under attack is annulled and the trial court will take such further proceedings as are not inconsistent with this decision.

Nourse, P. J., and Spence, J., concurred.

A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 13, 1934.