Ramey v. Myers

Appellant Heffernan is the assignee of a money judgment. He appeals from an order compelling its satisfaction. The order thus brought under review was granted upon motion made by defendant Myers pursuant to section 675 of the Code of Civil Procedure.

The judgment which appellant acquired by assignment was entered upon a jury verdict in favor of plaintiffs Ramey and against the eodefendants Myers and Buckley. The theory of the motion to compel satisfaction was as follows: (a) The judgment was recovered upon a cause of action ex delicto.

The points and authorities to which reference was made in the notice of motion contain the following statement, among others: “A review of the previous proceedings in the above-entitled action clearly indicates that the codefendants were held responsible as joint tortfeasors for a civil fraud perpetrated upon the plaintiff, and that the judgment made and entered herein was against them as joint tortfeasors. The affidavits attached hereto and filed herewith, establish that the judgment in this action has been purchased by an individual who is apparently acting as the agent and/or nominee of F. J. Buckley, one of the codefendants.” The points and authorities also cited and digested California decisions in support of the rules of law relied upon by the moving party with reference to contribution among joint tortfeasors and the right of a judgment debtor to compel satisfaction where it appears that another judgment debtor has paid the judgment directly or indirectly.

From the foregoing it is apparent that appellant was given ample notice of the grounds upon which the motion would be made. Thus, as stated in Shields v. Shields, 55 Cal.App.2d 579 , at page 584 [ 130 P.2d 982 ], “the purpose of the code provision requiring that the grounds of the motion be set forth was sufficiently served and that is all that the law requires.” To the same effect are Savage v. Smith, 170 Cal. 472 , 474 [ 150 P. 353 ] ; Giandeini v. Ramirez, 11 Cal.App.2d 469 , 475 [ 54 P.2d 91 ]; Perez v. Perez, 111 Cal.App.2d 827 , 830 [ 245 P.2d 344 ].

Appellant next attacks the sufficiency of the affidavits by contending that statements therein to the effect that appellant “took no interest in the judgment” and that he was “the agent and nominee of Buckley” were mere conclusions and not statements of fact. It is our view that the. affidavits

Moreover, the issue as to the sufficiency of the affidavits from an evidentiary standpoint should be regarded as moot for the reason that the motion to compel satisfaction of the judgment was heard and decided, not only upon the affidavits filed in support and in opposition, but also upon oral and documentary evidence produced at a hearing of some three days’ duration. The notice of motion contemplated this form of proof. Since in this case both parties availed themselves of an unrestricted opportunity to present oral testimony and documentary evidence, the affidavits filed in support of the motion and in opposition to it actually served more the office of pleadings than of proof.

The contention that the cause of action upon which the judgment was rendered was ex contractu rather than ex delicto is without merit. It is immediately apparent from a reading of the decision affirming the judgment on appeal (Ramey v. Myers, 111 Cal.App.2d 679 [ 245 P.2d 360 ]) that the liability of the defendants was predicated upon a breach of fiduciary duties and a concealment of facts giving rise to the right of plaintiffs to recover secret profits. The delictual character of the action seems manifest. In its affirming opinion, the appellate court concluded (111 Cal.App.2d at pages 685 and 686) : “The evidence hereinbefore recited not only established the existence of agency, but it also tended to prove the concealment of facts vital to the plaintiffs with resultant profit to defendants. In the circumstances presented by the record, the trial court very properly instructed the jury on the issues of agency, fiduciary relationship and the right of plaintiffs to recover secret profits.” As stated in Darrow v. Robert A. Klein & Co., Inc., 111 Cal.App. 310 at 316 [ 295 P. 566 ], “A violation of duty on the part of a trustee is treated as a fraud upon the beneficiary (Civ. Code, § 2234), and a violation of duty on the part of an agent

Sufficiency of the Evidence

Since the order under review is based upon an implied finding that Heffernan, in paying off Continental and taking an assignment of the judgment, was acting for and on behalf of Buckley, the question for our decision is whether there is any substantial evidence, contradicted or uncontradieted, which supports this finding. All conflicts must be viewed in the light most favorable to the prevailing party, The challenged finding is entitled to the benefit of every favorable inference that reasonably can be drawn from the evidence. (Crogan v. Metz, 47 Cal.2d 398 , 403-404 [ 303 P.2d 1029 ]; Grainger v. Antoyan, 48 Cal.2d 805 , 807 [ 313 P.2d 848 ].)

We have concluded that the finding of the trial court is amply supported by the record. Since the trial judge was entitled to view the case in the light of all matters appearing in the record before him, we deem it necessary briefly to review the history of the judgment and certain proceedings relating thereto as a background for our summary of the evidence.

The judgment was entered on May 10, 1951. After denial of the motion for a new trial, a notice of appeal in the name of both defendants was filed on July 5, 1951. On the same day defendant Buckley applied to Continental Casualty Company for a bond to stay execution. He posted with his application a cashier’s cheek for $12,000, the proceeds of which were held by Continental as collateral security. Continental executed and filed a stay bond in the amount of $30,152.18. The judgment was affirmed by Division One of this court on June 16, 1952. Hearing by the Supreme Court was denied on July 14, 1952.

On September 3, 1952, Continental paid plaintiffs the sum of $22,255.88 in full payment of the judgment and took an assignment thereof. On September 8, 1952, Continental filed its assignment, along with a substitution of attorneys signed by the plaintiffs, substituting the law firm of Anderson, MePharlin and Conners in the place and stead of plaintiffs’ attorneys. On September 19, 1952, Continental filed a document entitled “Nomination of Attorneys” in which Samuel Colby, then attorney for Buckley, was associated as its attor

On October 14, 1952, Continental withdrew from its trust account the $12,000 which had been deposited by Buckley, and reimbursed itself to that extent for the loss sustained in paying the judgment. No partial satisfaction of judgment was filed.

On November 7, 1952, writ of execution on the judgment was issued in the full amount, that is, in excess of $22,000. On January 7, 1953, defendant Myers and his family were examined by Attorney Colby on proceedings supplemental to execution. No such proceedings were had with respect to the defendant Buckley. On January 20, 1954, Continental assigned the judgment to appellant John Heffernan, a stock broker and member of the New York Stock Exchange, New York City. This assignment to appellant Heffernan was not filed with the clerk until October 10, 1956, following the filing by respondent of a motion to compel satisfaction of judgment in which Continental was named and served as the apparent owner of the judgment.

Thereafter, on October 18, 1956, respondent filed a new notice of motion to compel entry of satisfaction of the judgment naming appellant as the judgment creditor. On June 4, 1956, after a three-day hearing of the issues presented by the motion, the court made the order here appealed from.

Certain undisputed facts immediately appear to be significant: (1) Appellant Heffernan actually claims no beneficial interest in the judgment. In his deposition he testified that one E. Haiss asked him to purchase the judgment, furnished all of the money for its purchase and “has the entire interest” in it. Thus Heffernan admittedly stood before the court as the holder of nothing more than the bare legal title to the judgment. (2) For some wholly unexplained reason, said E. Haiss, who, according to Heffernan, was the true beneficial owner of the judgment, failed to appear as a witness at the hearing or to give any testimony by affidavit, deposition, or otherwise. (3) Buckley and Heffernan are brothers-in-law and, according to Heffernan, said E. Haiss is their sister-in-law.

As above indicated, the evidence shows a close family relationship by marriage between Buckley and Heffernan. It would appear from the combined testimony of Heffernan and Elizabeth Buckley that Heffernan’s wife, Buckley’s wife and E. Haiss are sisters; that Heffernan and Buckley are brothers-in-law and that E. Haiss is their sister-in-law. However, respondent Myers testified that he had known Mr. and Mrs. Buckley for some 18 years and that during that period he had seen Mrs. Buckley sign many documents using the name E. Haiss. In the light of all the circumstances the trial court might have disbelieved the testimony of Mrs. Buckley and the deposition testimony of Heffernan that the E. Haiss who furnished the money for the purchase of the judgment was Evelyn Haiss, Buckley’s sister-in-law. On the basis of respondent’s testimony, the trial judge might reasonably have concluded that the E. Haiss for whom Heffernan purchased the judgment was Bueldey’s wife, Elizabeth.

However, regardless of its conclusion as to the identity of E. Haiss, the trial court could draw the reasonable inference that she acted for and on behalf of Buckley in purchasing the judgment and in furnishing the money for that purpose. Buckley was the only one of the several parties involved in the transaction who stood any possible chance of benefiting from the purchase of the judgment. It seems most unlikely that any reasonable person would pay full face value for a judgment which, even if collected in full, would allow the purchaser no profit—a judgment which, in view of its history, obviously was of doubtful value.

But there is evidence of other circumstances which tend to support the finding of the court below. According to Heffernan’s testimony, he is a stock broker by profession and had never bought any other judgment. Acting for his doubtfully identified principal, he paid full face value for the judgment without making any inquiry concerning the credit or financial responsibility of either of the judgment debtors. Heffernan also stated that he employed Attorney Colby, who was also Buckley’s attorney, to negotiate the purchase of the judgment

Attorney Newton E. Anderson, one of the attorneys for Continental, testified that following the affirmance of the judgment on appeal and the assignment of the judgment to Continental, Buckley was represented by attorneys L. H. Phillips and Samuel Colby. He further stated that Buckley came in and asked that Colby be associated as an attorney for Continental for the purpose of running an execution against Myers. He understood that Buckley paid Colby’s fees. Mr. Anderson said that he had “many, many conferences’’ with Buckley and Colby with reference to disposition of the judgment. During these discussions, Heffernan’s name was mentioned and Colby advised Anderson that Heffernan was going to purchase the judgment. Anderson recalled a conference with Buckley and Phillips in which they indicated a desire to handle the matter by assigning the judgment to Heffernan. Anderson’s firm did not handle the proceedings supplemental to execution in which Myers and his family were examined. These proceedings were conducted by Mr. Colby.

It seems significant that prior to the issuance of the writ of execution and the proceedings supplemental thereto, Continental had reimbursed itself to the extent of $12,000 by utilizing the collateral deposited by Buckley, but that no partial satisfaction of judgment ever was filed. Continental assigned the judgment to Heffernan as though it remained wholly unsatisfied. Anderson testified that Heffernan paid slightly over $10,000 for the judgment, but Heffernan testified in his deposition that he had paid the full amount, which was in excess of $22,000.

It seems unnecessary further to extend this opinion by reciting more of the cumulative evidence (with which the record is replete) tending to show that in assigning the judgment to Heffernan, Continental was cooperating with Buckley in an effort to keep it alive so that it might be collected in whole or in part from Myers.

A somewhat comparable situation was presented in Adams v. White Bus Line, 184 Cal. 710 [ 195 P. 389 ], There the plaintiff recovered judgment against the defendants White Bus Line and Stiles jointly for injuries caused by the concurrent negligence of said defendants. The defendant bus com-

At the conclusion of his closing brief appellant requests of this court that he be permitted now to offer evidence of an alleged written agreement between Myers and Buckley whereby they agreed to contribute equally to the payment of the Ramey judgment. With reference to the time when this “new evidence” was discovered, we are told only that appellant learned of the agreement “after the conclusion of the trial.” Manifestly, this request, made both tardily and inappropriately, should be disregarded.

The order is affirmed.

Fox, P. J., concurred.

Justice Ashburn, deeming himself disqualified, does not participate herein.

A petition for a rehearing was denied April 28, 1958, and appellant’s petition for a hearing by the Supreme Court was denied May 27, 1958.