Two points are made by plaintiff against the motion:
First, that it comes too late, judgment having been perfected prior to the hearing of the motion.
Second, that the defendant did, in fact, keep himself concealed with intent, &c.
As to the first point. If the- position be sound that such a motion cannot be made after judgment, yet this motion having been noticed and actually made confessedly in time, the extension of time caused by the reference will not make it irregular, though the hearing be not completed till after judgment.
But in my opinion, it is not indispensably necessary that the *100motion should he made before judgment. A very learned and respectable court has declared that the attachment is discharged ijpso facto by the entry of the judgment. But I can find no provision in the Code to that effect; on the contrary, there are provisions entirely inconsistent with such a position.
Among other provisions, the statute declares that “ until the judgment against the defendant shall be paid”—not recovered— but until it “ shall be paid,” “ the sheriff may proceed to collect the notes and other evidences of debt, and the’debts that may have been seized or attached under the warrant of attachment, .... and apply the proceeds thereof to the payment of the judgment.” {Code, § 237, subd. 4.)
It is clear that the sheriff has no such power under the execution. He has it obviously under the attachnlent, which, therefore, cannot be said to be superseded by the judgment.
The facts as disclosed by the affidavits, and the evidence before the referee, show that there was no ground for the attachment.
The order appealed from should therefore be reversed, and the attachment discharged, with $10 costs.
Present, Ingraham, P. J., Leonard and Peckham, JJ.