O'Connor

Brunswick filed a complaint at 2:11 p.m. on September 29, 1967 in the San Diego Superior Court to recover possession of bowling equipment, immediately gave the sheriff an affidavit, undertaking and endorsement for claim and delivery, under Code of Civil Procedure, sections 510-512, and directed the sheriff to take possession of the equipment. Appellants filed an answer to the complaint at 4:47 pm. that afternoon, before the sheriff seized the equipment.

When the sheriff refused to take possession of the equipment Brunswick brought this mandamus proceeding requiring him to do so. From a judgment favoring Brunswick the intervening parties in possession of the bowling equipment have appealed.

The sole issue involves the meaning of Code of Civil Procedure, section 509, particularly the words “claim the delivery,” which provides: “The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter.” (Italics added.)

*712 To be effective before answer, does “claim the delivery” require the sheriff to actually seize or take possession of…