94 P. 83 | Cal. Ct. App. | 1907
Proceedings supplemental to execution. It appears from the transcript that on January 19, 1907, plaintiff recovered judgment against defendants in the superior court for $531.25; execution issued and was returned unsatisfied; upon the affidavit of plaintiff that defendant Ansermo Cinquini had property which he refused to apply toward the payment of said judgment, the court ordered him to appear and answer concerning his property. At the hearing on May 21, 1907, one Hayes was sworn on behalf of plaintiff *246 and testified that he was vice-president of the Hayes Company; that defendant Ansermo Cinquini "has been working for Hayes Company, of which I am an officer, from December 16, 1906, until the present time, and there is now due from Hayes Company for the labor he has performed the sum of $132.65; the said Hayes Company does not owe Ansermo Cinquini anything by reason or otherwise of any labor performed by him for said company." He further testified that on January 16, 1907 (before the entry of judgment), the Hayes Company received a written notice of assignment and transfer by defendant Ansermo Cinquini reading: ". . . I have assigned and transferred to G. Coppellotti . . . all sums of money that may become due me by virtue of my services rendered while in your employ between Jan. 16, 1907, and July 16, 1907." Hayes testified: "If such assignment is valid, then the Hayes Company does not owe Ansermo Cinquini anything for the amount due for his work from December 16, 1906; if it is invalid, then the Hayes Company owes Ansermo Cinquini the sum of $132.65." He further testified that subsequent to January 16, 1907, Coppellotti notified him "to allow Ansermo Cinquini to have what money he needed for tobacco and other necessaries and deduct the same from the amount due for labor performed by said Ansermo Cinquini for the Hayes Company," and that he had furnished Ansermo supplies to the value of $7.35, in accordance with Coppellotti's instructions. Defendant Ansermo Cinquini testified: "I am working for Hayes Company and have been since December 13, 1906, at a wage of one dollar per day, and I have not drawn any money from said company since January 16, 1907." He testified further to having assigned his claim for wages from said company to Coppellotti and that at the time he made the assignment he "was owing Coppellotti." This was all the testimony in the case. It appeared from the record that Coppellotti "was present in court during the proceedings with his books of account, under subpoena issued at the instance of the plaintiff and judgment creditor, but was not called as a witness to testify by either party to the proceeding." The court ordered that the said Hayes Company pay to plaintiff, or his attorney, the sum of $132.65, upon demand by said plaintiff or his attorney. Defendant Ansermo Cinquini appeals from this order. *247
The garnishee, Hayes Company, did not admit an indebtedness to defendant except it should be determined that the assignment was invalid. But that fact could not be litigated in this proceeding to which the assignee, Coppellotti, was not a party. His being present as a witness, though not called, did not make him a party nor did the order bind him. He was there only as plaintiff's witness, but was not called by either party. We think upon the evidence as it appeared the judge should have made an order to the effect that plaintiff might bring an action against the company, as provided in section 720, Code of Civil Procedure, to which Coppellotti and other persons, if any, claiming liens upon the money, might be made parties, to the end that all adverse claims might be adjusted and conclusively settled in such action and all parties protected. (Deering v. Richardson-Kimball Co.,
Respondent, however, makes the point that appellant's interests are not affected by the order and that he cannot appeal. Appellant makes no reply to this point. Section 938, Code of Civil Procedure, provides that "any party aggrieved may appeal in the cases prescribed in this title" (Title XIII). A simple and terse test as to who is an aggrieved party is given in an early case under the Practice Act, in Adams v. Woods,
The order is affirmed.
Hart, J., and Burnett, J., concurred.