Israel v. Bryan

In an opinion filed on December 20, 1920, the judgment herein was reversed upon the sole ground that the court erred in making an order that upon defendant Bryan depositing in court the fund in controversy he be discharged from liability, and other defendants, who were asserting claim to the money, substituted in his place. The decision was based upon the fact that, as shown by the record then presented, Bryan had an answer on file in the action, and hence the order made was in violation of the provisions of section 386 of the Code of Civil Procedure, which requires that in such cases it be made before answer filed.

The case involves two appeals, both of which are based upon the judgment-roll alone.

The history of the matter, as appears from the findings and record as corrected by diminution thereof allowed by the court after the making of the order granting the rehearing, is as follows: It is alleged in the complaint, filed on April 8, 1918, that plaintiff, on February 11, 1918, deposited with Solon Bryan, justice of the peace, the sum of three thousand dollars cash bail to secure the appearance of F. M. Couden at a preliminary hearing upon a criminal charge filed against him; that at said hearing, held on February 21, 1918, Couden was discharged, and on February 26th following, plaintiff demanded that Bryan return and redeliver to him the three thousand dollars so deposited, which demand was refused; wherefore plaintiff prayed judgment against defendant Bryan for the sum of three thousand dollars and interest from the date of the demand. To this complaint Bryan, on May 15, 1918, filed an answer

Upon the application of Bryan he was permitted to withdraw this answer, and granted five days within which to answer the complaint. Thereafter, and within the time so fixed for filing an answer, Bryan, purporting to act under the provisions of section 386 of the Code of Civil Procedure, and pursuant to notice given, made a motion for an order substituting James C. Byers as sheriff of San Diego County and the First National Bank of San Diego as defendants in the action, and that upon his depositing in court the said sum of three thousand dollars he be discharged from liability to any of said parties on account of said deposit so made with him by plaintiff. This motion was supported by an affidavit setting forth in substance the facts contained in the answer filed by Bryan to the complaint herein. Thereupon, on May 24, 1918, the court made an order granting his motion, and substituted, as defendants in said action James C. Byers, as sheriff, and the First National Bank of San Diego, California, and thereafter made its order reciting that Bryan had complied with its direction with reference to the deposit in court of said sum of money, and ordered, adjudged, and decreed that Bryan be fully discharged and

The sheriff and First National Bank, as substituted defendants, filed their joint answer, alleging the money upon which the execution had been levied to satisfy the judgment entered against defendant in the case of the bank against Couden, was the property of the latter, and praying that the same be applied in payment of said judgment. Upon the issues so joined, the court, among other adverse findings to plaintiff, found that the sum of money so deposited with Bryan was the property of Couden, and, on June 9, 1919, rendered and entered a judgment that plaintiff take nothing and “defendants do have and recover of and from said plaintiff the sum of $-, costs and disbursements incurred in this action,” thus leaving the subject of the litigation, in so far as concerned the rights of the bank thereto, undetermined. On August 7, 1919, plaintiff gave notice of appeal from this judgment. After the rendition thereof and as recited therein, the court, on August 6th, rendered an amended judgment, dated August 6th, indorsed “Filed August 9, 1919, J. B. McLees, Clerk,” whereby the First National Bank was awarded the amount due on its judgment against Couden. Thereafter plaintiff filed a notice of appeal from the judgment as so amended. As ground for the reversal thereof counsel for appellant insists that it was rendered on August 9th, two days after the appeal had been taken on August 7th from the original judgment theretofore rendered on June 9th, by reason of which, if in fact the judgment was rendered on August 9th, the effect thereof, as claimed by appellant, was to remove the case from the jurisdiction of the superior court.

The amended judgment, however, contains the recital that “on the sixth day of August, 1919, pursuant to due notice regularly given, the plaintiff having in open court moved that said judgment be amended by including therein a final disposition of the funds now impounded by this court, to wit, the sum of three thousand dollars heretofore deposited with the court by the former defendant herein Solon Bryan pursuant to the order of the court heretofore made herein, and the motion of the said plaintiff being now granted; w'herefore by reason of the law and the premises, it is hereby ordered, adjudged and decreed that,” etc. [1] Conceding

[2] As to the original judgment rendered on June 9, 1919, and so amended, as stated, by order of court on August 6th, appellant’s chief contention is that, by reason of the fact that Bryan had filed an answer in said action so brought by plaintiff against him, the court had no power under the provisions of section 386 of the Code of Civil Procedure to make the order releasing him from liability as a defendant, and substituting the bank as defendant in said action. In an application made by plaintiff for a writ of mandate against the superior court, he made the same contention, based, as now, upon the ground that, notwithstanding the fact that Bryan had no answer on file when the order of substitution of defendants was made, the court had no jurisdiction to make it, and in deciding the question the court, in Israel v. Superior Court, 43 Cal. App. 711 , [ 185 Pac. 682 ], said: “That the court, in permitting the defendant Bryan to withdraw his answer, was acting within its jurisdiction, is not, and, in our opinion cannot be, questioned in this proceeding. (Miles et at. v. Danforth, 37 Ill. 157 ; Rowan v. Kirkpatrick, 14 Ill. 1 ; Bash v. Evans, 40 Ind. 256 .) The order permitting the withdrawal of the answer and granting leave to file another was made at the same time; hence the answer on file protected defendant from default to a time when the order granting five days within which to file another answer became operative and in effect, prior to the expiration of which time the fund was deposited in court and the order made releasing Bryan from liability. In effect the situation was the same as though de

[3] The court in express terms found that the writ of execution was served upon Bryan, and “that on the twenty-sixth day of February, 1918, the said Solon Bryan made his return as demanded ... in which he reported that he had possession of and was holding said sum of three thousand dollars.” Appellant insists that such finding is insufficient to show that the levy was made in the manner provided by statute upon the .money so deposited with Bryan. Section 688 of the Code of Civil Procedure, under title of “What Shall be Liable to be Seized in Execution,” provides that all moneys of the judgment debtor are liable to execution, and where, as here, held by 'one other than the judgment debtor, it “may be levied upon ... in like manner as like property may be attached.” And subdivision 5 of section 542 of the Code of Civil Procedure provides how such property shall be levied upon under a writ of attachment, namely: by leaving with the person having possession or control of the money a notice as therein prescribed. It is a well-settled rule that findings of fact made by a trial court are to receive such construction as will uphold rather than defeat the judgment based thereon. In the absence of any evidence showing how the levy was made, the finding of the court that the execution was served upon Bryan implies

[4] We may concede that, as claimed by appellant, a judgment creditor cannot maintain an action at law against a debtor of his debtor without the issuance and levy of a writ of attachment, and that no proceeding therefor was had in this action, and likewise concede that plaintiff cannot maintain a creditor’s bill to subject property to the payment of a judgment without alleging and proving that an execution has been returned unsatisfied. (Matteson etc. Co. v. Conley, 144 Cal. 483 , [ 77 Pac. 1042 ]; Herrlich v. Kaufmann, 99 Cal. 271 , [ 37 Am. St. Rep. 50 , 33 Pac. 857 ].) But the First National Bank, as judgment creditor of Couden, was not seeking to recover from either Israel or Bryan as a debtor of Couden, but by virtue of its judgment against the latter, it caused the levy of execution to be made upon the fund in the hands of Bryan, claiming that the same was the property of Couden. By reason of Bryan depositing the money in court and his release from liability, the bank could not proceed upon supplementary proceedings to have the money applied in satisfaction of the execution. As a substituted party, its only course was by answer to set forth its right to the fund, and, as between itself and plaintiff as other claimant, submit the question to the determination of the court.

[5] That the fund so deposited by the plaintiff with Solon Bryan and upon which the execution was levied was at all times in question the property of Couden, conclusively appears from the finding made by the court upon the trial of the issue as to ownership thereof, and that the action of the court, in the custody of which the money was by its order deposited, in applying the same to the payment of a valid judgment rendered in favor of the bank and against Couden, was a just and righteous disposition of the same, cannot be questioned. Under these circumstances, even though conceding there were irregularities, in the proceedings, nevertheless the judgment, in accordance with the provisions of section 4% of article VI of the constitution, should be affirmed.

The objection that the sheriff was by the order improperly made a defendant is well founded. (Sublette v. Melhado,

The judgment is affirmed.

James, J., concurred.

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 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

We are also of the opinion that the amendment of the judgment made on August 6th can only he upheld on the theory that as no notice of the entry of the judgment had been given, it must he 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.