20 Cal. 2d 186 | Cal. | 1942
The petitioner, as Building and Loan Commissioner, applied for the writ of mandamus to direct the respondent superior court to recall and quash a writ of execution levied on the assets of Pacific States Savings and Loan Society to satisfy a judgment rendered for the plaintiffs, Terry et. al., in an action against the society. The facts are not disputed.
On September 30, 1937, Terry and others commenced an action against Pacific States Savings and Loan Society to recover sums claimed to be due on certain fidelity definite term investment certificates and fidelity participating certificates of the society which matured May 23, 1936.
March 4, 1939, the petitioner took possession of the property and assets of the society pursuant to section 13.11 of the Building and Loan Association Act. (Stats. 1931, page 483, as amended, Deering’s Gen. Laws, Act 986.) The next day pursuant to section 13.12 of the act the society commenced an action to enjoin further proceedings on the part of the commissioner.
June 12, 1939, the plaintiffs in the Terry action recovered judgment for $15,696.71 and on August 23, 1939, execution was levied, but nothing has been paid on the judgment by virtue of the levy.
October 30, 1939, pursuant to section 13.16 of the act, the commissioner filed a notice of determination to liquidate. August 2, 1941, the commissioner in the Terry action moved the respondent court to recall and quash the writ of execution on the ground that said section 13.16 forbade the lien of said judgment and any execution thereon. The motion was denied, and on September 4, 1941, the present proceeding was commenced for the purpose of compelling the respondent court to recall and quash the writ of execution. On December 29, 1941, the court in the injunction proceeding filed by the society on March 5, 1939, found for the commissioner and entered its judgment of dismissal.
The foregoing statement of facts is sufficient upon which to resolve the problem here involved. Section 13.16 of the act provides in part: “The determination by the commissioner to liquidate any association, .evidenced by filing writ
If the taking of possession under the act was a part of the process of liquidation within the meaning of the quoted provision, as contended by the petitioner, then the jurisdiction of the respondent court might be exercised in but one way, namely, by granting the motion to recall and quash the writ. The petitioner’s remedy by appeal from the order denying his motion to recall the writ, in a case of this character, may not be deemed sufficient to preclude a consideration of the merits of the present application and the issuance of the writ if the application should be found to be meritorious. (See Betty v. Superior Court, 18 Cal. (2d) 619 [116 P. (2d) 947].)
Since the Terry action was brought more than thirty days prior to the taking of possession, it was not stayed by the above provisions of section 13.16 of the act. But whether the judgment or execution in that action created a lien depends upon the answer to the question of when under the act the process of liquidation commences. By section 13.11 of the act the commissioner is empowered to take possession of the property, business and assets of the association by reason of the conduct of its affairs in an injurious and unsafe manner, or for other reasons therein stated, and he may “retain such possession until such association shall with the consent of the commissioner resume business, or until its affairs be liquidated.”
By section 13.12 any association affected by the commissioner ’s order of possession may within thirty days apply to the superior court to enjoin further proceedings. In the injunction proceeding the court may dismiss the application or enjoin the commissioner from further proceedings and direct him to surrender the business and assets to the association. By section 13.13 the commissioner has certain specified powers upon taking possession and, unless he is enjoined from further proceedings, he may proceed to liquidate the affairs
A judgment lien is a statutory right which attaches to property not exempt from execution. (Ackley v. Chamberlain, 16 Cal. 181, 183 [76 Am. Dec. 516].) The right thus created may also be taken away by statute, altogether or conditionally, as in cases of insolvency. By the enactment of the Building and Loan Association Act the Legislature has seen fit to withdraw the right of a judgment lien and execution process from judgment creditors in certain cases during the process of liquidation. The only effect of the judgment in an action not stayed by the provisions of the act, such as in the Terry case, would be an adjudication of the debtor and creditor relation and of the amount due.
In Evans v. Superior Court, 14 Cal. (2d) 563, 572 [96 P. (2d) 107], this court referred to the sections of the act here under considation and related sections and said: ‘ ‘ The above mentioned sections of the act should be considered together (Yager v. Superior Court, 139 Cal. App. 84 [33 P. (2d) 451]), and when so considered it is apparent that the Legislature intended to provide a comprehensive plan for the supervision of building and loan associations under certain conditions. . . . It has been held that a liberal rather than a
It is true that the question now to be determined is not the question which was involved in that proceeding. But the foregoing quoted declarations were necessary to the determination of the question there involved, and we are not now presented with authorities or argument which would justify a disapproval of them.
The respondent relies on Lanz v. Fresno L. & S. Bank, 125 Cal. 456 [58 Pac. 63], and Argues v. Union Savings Bank, 133 Cal. 139 [65 Pac. 307]. In the Lanz case the plaintiff had been overlooked in the distribution of the bank’s assets by the trustees in the process of liquidation. It was held that he could recover judgment on his claim. In the Argues case it was held that an ordinary action for the collection of a debt could not be maintained against a bank while it was in process of liquidation, and that the only permissible action would be one against the liquidating trustees for some dereliction of duty. The Lanz case involved such a permissible action. Neither ease therefore is inconsistent with our interpretation of the provisions of the act here involved.
Let the peremptory writ of mandamus issue as prayed.
Curtis, J., Carter, J., and Traynor, J., concurred; Houser, J., concurred in the judgment.
Respondent’s petition for a rehearing was denied May 18, 1942.