38 P. 536 | Cal. | 1894
Defendant Blake erected an addition to a school building under a contract with the plaintiff, and completed the same September 14, 1892, at which date there remained unpaid $829.45 of the contract price, which, by the terms of the contract, was not payable until thirty-five days after the completion of the work, as required by the statute, a sum insufficient to pay all the subcontractors and material-men in full. Nine days after completion appellants commenced an action at law against Blake, the contractor, and served process of garnishment upon the board of education. Afterward De Gear and other claimants (who afterward assigned to him) served upon the board notices of their several claims, as provided by section 1184 of the Code of Civil Procedure, some of these notices being served before the expiration of the thirty-five days and others after such expiration. After these notices were all served, respondent De Gear also commenced an action against the contractor, and garnished the board of education, and both appellants and respondent obtained their several judgments against the contractor. The board of education thereupon commenced this action, paid said sum remaining in its hands into court, and obtained an order requiring the several defendants to interplead, and litigate their respective claims thereto. The defendants (except the contractor, who made no claim) interpleaded, and the cause was submitted upon facts agreed, and findings were filed and judgment entered awarding De Gear $601.26, the amount of his claim, including the assigned claims, and $6.50 costs, but making no disposition of the remainder of the fund. From this judgment appellants have appealed upon the judgment-roll.
In addition to the foregoing, the court specially found that appellants did not at any time serve upon the board of education any notice in writing of their claim, other than said notice of garnishment. So far as appellants are concerned, they proceeded against Blake as general creditors without any
As to appellants’ contention that they should have been awarded the remainder of the fund (said to amount to $221.69), we think it should be sustained; not, however, upon the ground that the right to it was acquired by the garnishment, but because the board voluntarily paid the money into court, and required appellants to interplead concerning it. They already had their judgments against Blake, who was a party to the suit, and who made no objection to such application of the fund, and he was the only party who could object. The money must be paid either to Blake or the appellants, and we think Blake’s failure to contest the right of appellants justifies a judgment in favor of the latter for the remainder of the fund. The judgment appealed from should therefore be modified so as to award the remainder of the fund in the hands of the court to appellants, but without costs, and as modified, that the judgment be affirmed, appellants to pay the costs of this appeal.
We concur: Belcher, C.; Vanclief, C.
For the reasons given in the foregoing opinion, the judgment appealed from is modified so as to direct the payment of any balance that may remain of the funds in the hands of the court to appellants according to their several rights, but without costs; and, as modified, that the judgment be affirmed, at the cost of appellants.