McCullough v. Clark

41 Cal. 298 | Cal. | 1871

By the Court, Crockett, J.:

If the answer of the defendant was not properly verified, the plaintiff should have moved in the Court below, either to strike out the answer, or for judgment as for want of an answer. But after going to trial on the merits without objection to the verification, he will not be allowed to raise the point, for the first time, in this Court. He must be held to have waived all objection to the verification by his failure to except to it at the proper time. The principal question in the case is whether or not the adjudication of the District Court in the proceeding supplementary to execution, and of this Court on appeal from the order of the District Court, are res adjucLicaia in such form as to estop the plaintiff from maintaining this action. Under our code, proceedings supplementary to execution, by which a judgment debtor is required to appear before the Court or a referee to answer concerning his property, are but a substitute for a creditor’s bill at common law. It is only a summary method of purging the debtor’s conscience and compelling the disclosure of any property he may have which is subject to the execution. The proceeding was intended to be summary and effectual, and affords the widest scope for inquiry concerning the property and business affairs of the judgment debtor. It is true there are no formal issues framed; for in the very nature of the proceeding it would generally be impossible to frame specific issues in advance of the examination of the judgment debtor. The very object of the proceeding is to compel him to give information concerning his property; and until the disclosure is made there is nothing upon which an issue could be framed. ¡Nevertheless, witnesses may be called and examined on either side; and after hearing the case the Court or referee is to decide what property, if any, the judgment debtor has which is subject to be applied to the satisfaction of the judgment, and to direct its application accordingly. The proceeding is purely judicial, involving an examination into the facts upon sworn testimony, and the decision of questions of law arising on the facts proved. The judgment creditor and debtor are parties to the proceeding, and each is at liberty to call and examine witnesses in respect to any contested fact which may be brought in issue in the course of the proceeding. If the parties to such a proceeding, as between themselves and privies, are not estopped from again litigating the same matters in another form of action, the whole proceeding would be but a judicial farce, accomplishing no useful end. But it is too plain for argument that, after the Court or referee has finally decided that a specific parcel of property should be applied to the satisfaction of the judgment, the only remedy which the law affords to the judgment debtor is an appeal to this Court from the order of the District Court.

If he claims that the property was exempt from execution, and that the Court erred in ordering it to be applied to the satisfaction of the judgment, he has a plain and adequate remedy by appeal to this Court; but cannot again litigate the same matters in an independent action, as the plaintiff has attempted to do in this case. Before the referee and the District Court he distinctly made the point that the policy of insurance was exempt from execution and was not liable to be applied toward the satisfaction of the judgment. The referee decided against him and ordered him to deliver the policy to the Sheriff, who then had the execution, in order that he might apply the policy toward satisfying the judgment. Defusing to obey the order, the Court ordered him to comply with it, on pain of being committed for a contempt. Still refusing, and after being committed to prison, he sued out a writ of habeas corpus, on the ground that the policy was exempt from execution and that he was illegally committed for refusing to deliver it. On the hearing the writ was dismissed, and thereupon the plaintiff delivered the policy to the Sheriff as he had been ordered to do, but proseeutéd an appeal to this Court from the order of the District Court. On the hearing of the appeal, the plaintiff insisted in this Court that the policy was exempt from execution; but on the facts, as presented on the appeal, we held otherwise, and that the referee and the District Court properly ordered it to be applied towards the satisfaction of the judgment. (36 Cal. 542.) After an adjudication by the referee, . the District Court and this Court upon the precise point, that this particular policy was not exempt from execution and ought to be applied towards the satisfaction of Briggs’ judgment, it is quite evident, that as between Briggs and himself, the plaintiff is estopped from again litigating the same quesi tion. And as between them the estoppel was mutual. If the Court had decided in that proceeding that the policy was exempt from execution, Briggs would have been concluded by the judgment, in like manner, and for the same reason, that the plaintiff is now concluded by it. Hor can the plaintiff assert any rights as against the Sheriff, the defendant in .this action, to whom he delivered the policy, other than those he could have asserted against Briggs. The plaintiff being estopped to deny that the policy was properly ordered to be applied towards the satisfaction of the judgment, and the Sheriff having received it and now holding it, in obedience to that order, which has been affirmed by this Court, it is clear that the Sheriff, in seeking to apply the policy toward the payment of the judgment, is only performing a duty enjoined upon him by law, and, therefore, cannot be treated as a wrongdoer.

I think the defendant’s specifications in his statement, of the particulars wherein the evidence was insufficient to justify the judgment or decision of the Court, were sufficiently specific. The only object of the specification required by the statute is, clearly, to direct” the attention of the adverse party to the particular point on which the evidence is claimed to be insufficient; and the specifications in this case were sufficient for that purpose.

Judgment reversed and cause remanded for a new trial.