193 P. 864 | Cal. Ct. App. | 1920
These are appeals by the defendants in the several cases from identical orders vacating in each case a satisfaction of judgment theretofore entered in favor of the respective plaintiffs in the actions entitled as above. The orders were made upon the motion of the respondent Rauer, a stranger to the record. There are three cases, similar in all respects, consolidated by stipulation and tried together in the superior court, and they are here upon a consolidated record under section 941a et seq. of the Code of Civil Procedure.
Avoiding so far as possible unnecessary detail, the facts of the three cases may be stated as follows: Clark, the plaintiff, was a bookkeeper in the office of Rauer, a collector. Rauer held three promissory notes as indorsee or assignee against Davis and his codefendants. Rauer transferred these notes to Clark by assignments absolute in form. The purpose of the assignments was solely that Clark's name should be used as plaintiff in these actions, which were accordingly begun in his name, one against Johnston and Davis, another against Campin and Davis, and the third against Taylor and Davis. A fourth action not embodied in this record figured in the facts as they finally developed in the trial court. These cases went to judgment in favor of plaintiff, the amounts thereof and of the fourth judgment above enumerated aggregating about $3,500. In this state of the cases Clark, at the instance of Davis, satisfied the judgments by *317 directions in writing to the clerk, which the latter obeyed by entering the satisfactions of record. For these satisfactions Clark took from Davis a check for $50 and a promissory note for $1,950. Clark made no profit personally from the transaction as he turned over and delivered the check and the note to Rauer's attorney, who was also Clark's attorney in the case. In one of the actions a writ of attachment had been issued and levied, and to secure the release of the property taken under this writ the Fidelity Deposit Company of Maryland had, at the instance of Davis and his codefendant, executed an undertaking, and the surety company, in turn, in order to secure itself had taken from the defendants in the action certain collateral. This was released upon presentation to the surety company of proof of satisfaction executed by Clark. The rights of the Fidelity Deposit Company are not involved in this matter, as no attempt was made in the proceedings following the satisfaction to reestablish any rights of Rauer or Clark against it. Davis by securing the satisfaction of the several judgments, if it is permitted to stand, will profit to the extent of having settled judgments in about the sum of $3,500 for a promissory note of problematical value and $50 in cash, and also by having procured the release of the collateral held by the surety company as security for its undertaking given upon the release of the levy of the writ of attachment.
Following this satisfaction proceedings were instituted by Rauer upon which this appeal is predicated. Rauer in each action noticed a motion to set aside the satisfaction. This motion was based upon the ground that the satisfaction of judgment "was made and entered without right and without consideration." In support of his motion Rauer filed certain affidavits of himself and his attorney showing that Clark had no interest whatever in the notes or in the judgment; that the assignments to him had been made solely for purposes of collection and only with the intent upon his part and upon that of Rauer that he should nominally be plaintiff in the action; that he was not permitted to conduct or manage the litigation in any way; that he paid none of the costs, and that he was, in short, a mere figurehead in the case, and that Clark had nothing whatever to do with the actions except that they were prosecuted in his name; that at all times Rauer was the owner of the notes and judgments, *318 and that all these facts were at all times known to Davis; that Rauer had never authorized Clark to adjust, compromise, or settle the actions or to satisfy the judgments therein, and that Clark had no authority to do any of these things. Certain counter-affidavits were filed in the matter, but the trial court found in accordance with the facts above stated — or at least it must be presumed to have so found in support of the order which it subsequently made, no formal findings upon the matter having been filed. Certain oral testimony was presented at the hearing, and, among other things, Rauer testified that he had told Davis distinctly that Clark had no interest whatever in the judgments. Upon this state of the record the trial court vacated the satisfaction of judgment in each case.
[1] Upon this record it is contended by appellants that Rauer, being a stranger to the record, could not be heard to move to vacate the satisfaction. Of course, a party to the record may have a satisfaction, entered in fraud of his rights, set aside on motion in the immediate action in which the judgment is entered. (Haggin v. Clark,
In a case of similar import but where the facts differed in this, that the judgment was assigned after it was entered, the supreme court of errors and appeals of New Jersey said: "Where there has been a cancellation of judgment procured by fraud or mistake this court has the power to vacate such cancellation and to restore the lien of the judgment, saving the rights of intervening creditors who have in good faith and without notice given credit and obtained liens upon belief that such judgments have been legally satisfied." (Keogh v. Delaney,
Potter v. Hunt and Sloane,
It was held in Henry v. Traynor,
[2] In our own state there is no direct authority upon the point at issue. The nearest approach to it, aside from the case of Haggin v. Clark,
It is argued that Davis was under no obligation to consult Rauer at all; that the assignment for collection vested legal title to the notes in Clark as assignee, which was sufficient to entitle him to recover; and that although Rauer retained an equitable interest in the claim as between him and Clark, this was no concern of Davis; and general language can be found to this effect in Kelly v. Hampton,
If we be correct in the conclusion reached upon the point already discussed in this opinion it is not necessary to discuss other questions raised by the parties to this appeal.
The order appealed from is affirmed.
Waste, P. J., and Richards, J., concurred.
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 November 18, 1920, and the following opinion then rendered thereon:
THE COURT. — In denying a rehearing we deem it well to say, in order to avoid any possible misapprehension, that, as we understand the opinion of the district court of appeal, the order setting aside the satisfaction is upheld and justified because the evidence shows, as it amply does, that the satisfaction was given pursuant to an arrangement between the nominal plaintiff and the judgment debtor which was in actual fraud of the real party in interest in the judgment. We do not take the opinion as intending to decide that where a judgment debtor in good faith secures by way of settlement a satisfaction of the judgment from the nominal judgment creditor, the settlement and resulting satisfaction can be set aside upon proof merely that the judgment creditor was a nominal party only and that the judgment debtor knew that fact. The question which would be presented by such a case would be quite different from that actually presented here, and there is no necessity for expressing any opinion concerning it, and we do not understand the district court of appeal to have done so.
All the Justices concurred. *322