72 Cal. App. 2d 368 | Cal. Ct. App. | 1945
The present action was one for the conversion of 10,703% shares of the capital stock of Fred H. Bixby Company. The action, numbered 463102 in the superior court, was instituted April 11, 1941, and at that time there were on trial two other actions brought by plaintiff, numbered 458012 and 458013, the history of which, so far as pertinent here, is stated in our decision of appeals numbered 14859 and 14860, this day filed (post, p. 375 [164 P.2d 804]), and in the opinion in Bixby v. Hotchkis, reported in 58 Cal.App.2d 445 [136 P.2d 597]. ' One of those actions was for the recovery from Katharine Bixby Hotchkis of the shares of stock in the Bixby Company which, by the complaint in the instant action, were alleged to have been converted by said defendant. The other action was for the recovery of dividends on the stock which had come into the hands of Mrs. Hotchkis as trustee. After the institution of the present action Mrs. Hotchkis filed an amendment and supplement to cross-complaint in the two actions which were then on trial, in which the institution of the present action was alleged, together with the fact that said action raised the same issues as the cross-complaints of Mrs. Hotchkis and the answers of Fred H. Bixby, Jr. thereto which were then on trial. As appears from the opinion upon the other appeal, this day filed, the judgments in superior court actions 458012 and 458013 established the validity of the trust, under which Mrs. Hotchkis held title to the stock as trustee. The question was properly before the court in the actions that were tried, as to whether Fred H. Bixby, Jr. had any interest in the stock other than as the beneficiary of the trust, and the judgments determined that he had no other interest. That determination, that Mrs. Hotchkis held title as trustee, necessarily defeated plaintiff’s claims that he was entitled to the possession of the stock and the dividends thereon and the claim asserted in the instant action that the stock had been converted by Mrs. Hotchkis. The court found: “It is not true that cross-complainant has converted to her own use or at all the whole or any of said 10,703% shares of stock or the certificates representing same.” It was further found that Mrs. Hotchkis had not taken or withheld or detained all or any of said shares of capital stock at any time or in any manner except as trustee of said trust. Those judgments were affirmed (Bixby v. Hotchkis (1943), 58 Cal.App.2d 445 [136 P.2d 597]) and became final. They were therefore a conclusive
Although the appeal from the judgment is upon the judgment roll, and the evidence is not before us, we have taken notice of the judgment rolls in the former actions, because the judgments in those actions are set out in the amended and supplemental answer of Mrs. Hotchkis and it is conceded in the briefs that the judgment rolls were in evidence upon the trial of the plea of res judicata. The judgment rolls themselves conclusively sustain the decision. If there were any question about that, we would have to assume that there was sufficient evidence to sustain the plea, since the judgment recites that proof was made to the satisfaction of the court, and appellant has taken no steps to bring up the evidence, The identical question in issue in the present ease, namely, the alleged conversion of the stock by Mrs. Hotchkis, having been determined adversely to plaintiff by final judgments between the same parties litigating in the same capacity, was not subject to reexamination and redetermination. (15 Cal.Jur. 97.) The plea of res judicata was properly sustained.
A claim of error is predicated upon the denial of a continuance of the trial. The ground for continuance which was advanced was that on October 20, 1943, when the case was called for trial, plaintiff’s attorney was engaged in the trial of a case in the municipal court which had been commenced October 19. Notices of trial were served October 4 and October 13, 1943. On October 20, plaintiff’s attorney was represented by another attorney for the purpose of requesting a continuance and the trial judge, Honorable Em-met H. Wilson, ruled that the trial could proceed immediately or, if the attorneys for defendants and cross-complainants
Appellant made a motion to vacate Judge Wilson’s judgment, pursuant to section 473 of the Code of Civil Procedure, and this was denied by Judge Bartlett. Appellant has had certain of the proceedings on this motion incorporated in the record and the remainder was called for by respondents. It does not appear from that record that plaintiff herein had a meritorious defense to the plea of res judicata. There was no showing made on the motion to vacate the judgment that plaintiff’s rights were prejudiced by reason of the absence of his counsel from the trial.
The next point for consideration arises out of a proceeding to have Judge Wilson disqualified to rule on a motion
Respondents also rely upon other grounds for affirmance of the order. One of these is that plaintiff’s verified statement did not state facts sufficient to show that Judge Wilson was disqualified to rule upon the motion. There appears to be merit in this contention. The statement consists largely of conclusions and deductions drawn by plaintiff from adverse rulings which the judge had made. The answer of Judge Wilson contained general and specific denials of the existence of prejudice and of all facts from which prejudice could reasonably be inferred. There was ample evidence before Judge Westover to support his finding that Judge Wilson was not disqualified. It is therefore unnecessary to pass upon the legal sufficiency of plaintiff’s statement or to discuss the other points urged in support of the correctness of the order.
Appellant’s assertion that he was refused a jury trial
The judgment and the order holding that Judge Wilson was not disqualified, and the order denying motion for new trial (from which an appeal, ordinarily, may not be taken) are affirmed.
Desmond, P. J., and Wood, J., concurred.
A petition for a rehearing was denied January 22,1946, and appellant’s petition for a hearing by the Supreme Court was denied February 21, 1946.