I concur in the judgment. I do not agree that the court, on this record, had jurisdiction to render and enter the amended judgment, except under the authority conferred by sections 663 and 663a of the Code of Civil Procedure. But since there does not appear to have been any notice of entry of the judgment that was entered on June 9th, the notice of motion to amend was, apparently, made within the time limit prescribed by section 663a
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 23, 1921, and the following opinion then rendered thereon:
THE COURT. — The petition for rehearing in the supreme court is denied.
[6] We are not in accord with the statement in the opinion of the district court of appeal that "the sheriff was improperly made a defendant" in the proceeding for an interpleader by the defendant in the superior court. The sheriff had served a notice of attachment of the money in the hands of Bryan belonging to Couden, and the sheriff had a sufficient interest to entitle him to appear and show the true title to the money in behalf of his principal, the plaintiff in the action in which the judgment was issued, unless prior to the filing of the interpleader he had made return upon the writ of attachment. This fact does not appear. [7] A sheriff who has attached property has the right to defend the title of the attachment defendant thereto so as to protect his writ, at least until he has made return so that the plaintiff in the action may make his defense thereto. The cases cited in the opinion merely hold that the sheriff cannot recover the money from the attachment defendant and that the court in the attachment proceeding should not order it to be paid to the sheriff prior to the *Page 75 final disposition of the case in which the levy was made.[8] The proceeding in interpleader is a proceeding in equity, and all persons having any right or interest to protect may properly be made parties to such proceeding.
We are also of the opinion that the amendment of the judgment made on August 6th can only be upheld on the theory that as no notice of the entry of the judgment had been given, it must be assumed that, in effect, the amendment was made under the authority of section 663a of the Code of Civil Procedure, as indicated in the concurring opinion of Presiding Justice Conrey.
All the Justices concurred.