100 P. 242 | Cal. | 1909
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *208 This is an action to recover the sum of $3384.10 and interest from defendant as garnishee. The plaintiffs, nineteen in number, had, under the authority of section 1195 of the Code of Civil Procedure, joined in an action against one A.L. McConnell, as contractor, and defendant, Corona City Water Company, as owner, to foreclose mechanics' liens for amounts claimed to be due the said plaintiffs for work done. On July 6, 1903, judgment was entered in said action, declaring that plaintiffs were not entitled to liens, but awarding them, severally, judgments against McConnell for different amounts, aggregating $3125.33, with interest and costs. On July 7, 1903, execution was issued on this judgment, and placed in the hands of the sheriff. On July 8, 1903, the sheriff duly levied said execution upon the indebtedness of the Corona City Water Company to McConnell, and made return. On July 17, 1903, McConnell recovered a judgment against said water company for $3441.50, which, upon appeal to this court, was affirmed for $3315.50 and costs. On said July 17, 1903, after the recovery of said judgment by McConnell, a second execution was issued upon plaintiffs' judgment against McConnell, and was, on the same day, levied by the sheriff upon all debts owing from the Corona City Water Company to McConnell, and returned. It is found by the court that at the time of the levy of each of said executions, the water company was indebted to McConnell in the sum of fifty-two hundred dollars. Said water company failed and refused to pay *209 to the sheriff upon the levy of said executions, and its indebtedness to McConnell has never been paid. The plaintiffs instituted proceedings supplementary to execution in the action in which they had recovered judgment against McConnell, and such proceedings resulted in an order made on the thirteenth day of October, 1906, authorizing plaintiffs to bring this action against the Corona City Water Company to recover so much of the debt due from the water company to McConnell as would satisfy plaintiffs' judgment against McConnell. The present action resulted in a judgment in favor of plaintiffs, and defendant appeals from the judgment and from an order denying its motion for a new trial.
1. The order authorizing plaintiffs to maintain this action is assailed as failing to comply with the requirements of section 720 of the Code of Civil Procedure. Under that section (as it read at the time of the order in question), when, in proceedings supplementary to execution, a person or corporation alleged to be indebted to the judgment debtor denies the debt, the court or judge may "authorize by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such . . . debt." The order here made was that plaintiffs "be permitted to bring an action against the Corona City Water Company for the recovery of their judgment." While the order did not follow the precise language of the code, it was, when read in the light of the proceedings leading up to its making, in substantial compliance with the law. But even if it was not, in itself, sufficient as an order authorizing suit under section 720, the plaintiffs had the right, after having prosecuted their supplementary proceedings to the point of securing from defendants a denial of indebtedness to the judgment debtor, to bring this action without any order permitting them so to do. (Phillips v. Price,
2. It is argued that there is a variance between the allegations and the proof regarding the judgment of plaintiffs against McConnell. The averment of the complaint is that the plaintiffs obtained a judgment against McConnell for the sum of $3125.33 and costs. This form of statement implies, as is claimed, that the judgment was one in which the plaintiffs were equally interested to the extent of the whole amount recovered, whereas in fact the judgment was several in favor *210
of each plaintiff, and each was limited in interest to the amount awarded to him. The plaintiffs were, however, while setting forth distinct causes of action against McConnell, authorized by statute to unite in one action, and in that action a single judgment was properly made and entered. (Willamette etc. Co. v.Los Angeles College Co.,
3. On May 15, 1905, after the levy of the executions above referred to, McConnell died, and his widow was appointed administratrix of his estate. Notice to creditors was duly given, but plaintiffs' judgment against decedent was not presented to the administratrix for allowance, and the time for presenting claims had expired before the filing of the complaint herein. The appellant's position is that the plaintiffs, by reason of their failure to present to the administratrix a claim upon their judgment against her intestate, have lost their right to maintain any action upon such judgment. Any claim against the estate of a decedent, arising upon contract, must be presented within the time limited by the notice to creditors, and, if not so presented, "is barred forever." (Code Civ. Proc., sec. 1493.) A judgment against the decedent for the recovery of money must be presented "like any other claim." (Code Civ. Proc., sec.
4. The answer alleged and the court found that in February, 1906, the Corona City Water Company, defendant herein, recovered a judgment against the administratrix of the estate of McConnell for $7121, payable in course of administration, and that no part of this judgment has been paid. This judgment against the estate of the original judgment debtor is relied on as an offset to the demand here in suit. As a general rule, the garnishee may offset against the claim of the judgment creditor whatever demand he might be able to set off against the claim of the judgment debtor against him. "Of course the garnishee can plead any defense he may have against his creditor . . ." (Carter v. Los Angeles Nat.Bank,
5. There is no merit in the appellant's contention that the action is barred by the statute of limitations. The judgments obtained by McConnell against the water company were rendered less than four years before the commencement of this action, and a suit on these judgments by McConnell or his administratrix would, of course, not have been barred then. (Code Civ. Proc., sec. 336.) If the obligation of the garnishee to the judgment debtor is not barred, the statute of limitations has no application. "As to the statute of limitations, if the garnishee is entitled to the plea as against the defendant in the attachment suit, he can plead it. The liability created by the garnishment is never barred." (Carter v. Los Angeles Nat. Bank,
The judgment and order appealed from are affirmed.
Shaw, J., and Angellotti, J., concurred.
Hearing in Bank denied. *215