Selby v. Allen

As assignee of certain claimants, the plaintiff sued to obtain a judgment enforcing an alleged judgment which purported to fix his interest in a certain fund. From a judgment in favor of the defendants "the plaintiff appealed.

Prior to the year 1924 the Pacific Corporation had undertaken the sinking and development of well No. 16, and had sold fractional interests in the production to a large number of persons. In March, 1924, A. J. Charló and many others claiming to hold interests, commenced an action to have their interests determined, to obtain an accounting, and to recover the several sums so found to be owing to such claimants. That action was number 16653 of the records of the Superior Court in and for the County of Orange. Thereafter that action was tried and findings in favor of the plaintiffs therein named were filed on September 3, 1925. The findings are very long. From them we gather the following facts: In 1922 Muriel S. Lieherman was the owner of the land. She executed a lease to R. C. Steel. He and his associates caused to be organized a corporation. The lease was assigned to the corporation. To the lessor the corporation assigned 22% per cent of the production. To Steel, Biel and Detwiler, the organizers, it assigned 32% per cent of the production. The remaining 45 per cent of the production was held for sale in units. The units were sold and from the proceeds well No. 16 was developed and oil and other products were taken out in large quantities. The

Prom the judgment an appeal was taken. Said appeal was dismissed and the remittitur went down and was filed October 1, 1926.

On November 9, 1926, George Cunningham presented in action No. 16653 a purported petition. Therein he claimed to represent himself and certain other persons who claimed to hold interests in said funds hereinabove described and he asked to have their interests determined. An order to show cause was issued directing both the plaintiff and the defendants to show cause why the petition should not be granted. On December 16, 1926, the petition was heard and the court made an order purporting to grant said petition. On the same day in the same action the court made an

The plaintiff asserts that action No. 16653 “was instituted by certain plaintiffs in their behalf, and on behalf of all similarly situated”. An inspection of the records shows that it was commenced by a large number of persons as the named plaintiffs and that some others, also named, came in, but that all plaintiffs acted in behalf of themselves and not otherwise. In this action the trial court made findings to the same effect. The distinction will be found to be of importance as we proceed.

In his first point he asserts that the order, December 16, 1926, was a judgment and that he is entitled to enforce it as such. He cites and relics on De Forrest v. Coffey, 154 Cal. 453 [ 98 Pac. 27 ]; Pacific Railway Co. v. Wade, 91 Cal. 455 [ 25 Am. St. Rep. 201 , 13 L. R. A. 754 , 27 Pac. 768 ]; 22 Cal. Jur. 460. The defendants reply that said authorities are not applicable because they are concerned solely with actions under the Bank Act or federal statutes providing for the creation of receiverships, whereas action No. 16653 was an action to establish a fund and to determine the rights of the owners therein and that the appointment of a receiver was purely ancillary thereto. The distinction is clearly correct and the rule applicable in the instant case is to be found in 22 California Jurisprudence, pages 432, 433. In other words, action No. 16653 was brought for the purpose of having ascertained the fact whether the plaintiffs named owned an interest in the fund and that fact was so ascertained by the judgment dated September 3, 1925, and that judgment became final October 1, 1926. By that judgment interests in the sum of 100 per cent were so determined. In the absence of fraud those facts could not

After the judgment was rendered in action No. 16653 giving the plaintiffs in said action a money claim, they obtained permission from the court allowing them to take out an execution against the interests owned by the promoters. Those interests were sold and bought in for the plaintiffs in that action. Clearly the plaintiff in this action did not acquire and may not assert any rights in or to that property.

The plaintiff claims the evidence was insufficient to justify the findings made in this case. There is no merit in any of his attacks. The plaintiffs in action No. 16653 offered in evidence the files in that action as proof of their defense in this action. From the face of that record their defense was fully established.

The plaintiff also claims that tie trial court erred in receiving evidence. The burden of these attacks is that the trial court received evidence that was immaterial. Conceding, but not deciding, that it did so, the fact remains that the defense was proved by evidence that was competent, material and relevant and this plaintiff was not prejudiced.

The plaintiff claims the trial court failed to find on certain issues. However, the issues found support the judgment. If the other issues had been found in favor of the plaintiff he would not have been entitled to judgment.

The judgment is affirmed.

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